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The discussion of International Law Situations was carried on by the 
considerable body of officers composing the conference of 1904, with the 
assistance of Mr. George Grafton Wilson, professor in Brown University. 

It is always the intention to direct the discussions to those difficult and 
urgent situations in which naval officers have been, or are likely to be, 
involved, rather than to cases in which the law and precedent are well estab- 
lished, and the president of the college invites suggestions as to such cases. 


Captain, U. S. Navy, President. 
U. S. Naval War College, 

Newport, R. I., March 3, 1905. 


Situation I. — Merchant vessels adapted for conversion into auxil- 
iary cruisers. 


Solution 9 

Notes 9 

General attitude toward neutral commerce 9 

Question of contraband 10 

Grounds for commander's judgment 13 

Special considerations ^ 16 

Russian position, 1904 16 

Conclusion 17 

Situation II. — Rights of foreigner under martial law. 

Solution 18 

Notes 18 

Nature of martial law 18 

Application of Mr. B., the foreigner in State X 19 

Position of the United States Department of State 21 

Position of the War Department 23 

Conclusion 24 

Situation III (a), (b), (c), (d). — Insurgency. 

Situation III (a) . — Asylum for insurgent troops on war vessel 26 

Solution 27 

Notes 27 

Reception to bodies of men 27 

Cases of asylum 27 

Brazil, 1894 28 

Korea, 1895 28 

Development of policy in regard to asylum 29 

Attitude toward insurgent troops 31 

Asylum to officers of established government 32 

General consideration of situation 33 

Conclusion 34 

Situation III (b). — Seizure of United States merchant vessel by in- 
surgents : 34 

Solution 34 




Notes 35 

Insurgents as pirates 35 

Policy of United States 36 

Attitude of Great Britain 37 

Piracy according to international law 38 

Application to situation 38 

Conclusion 40 

Situation III (c). — Transport service of United States merchant vessel 

in time of insurrection 40 

Solution 40 

Notes 41 

Nature of relations 41 

Bluefields insurrection, 1894 42 

Effect of charter 46 

Opinion of Department of State 48 

Conclusion 50 

Situation III (d). — Return, during its continuance, of foreigners 

implicated in insurrection , 51 

Solution 51 

Notes 51 

Questions suggested by situation 51 

(a) Asylum for insurrectionists on merchant vessels 53 

The Barrundia case 53 

President's statement of Government's position 55 

Subsequent statements 55 

Changes in Navy Regulations 58 

Conclusion 60 

(6) Intervention for the protection of those involved in insur- 
rection who return upon a foreign merchant vessel 61 

Attitude of Department of State 61 

Conclusion 62 

Situation IV. — Belligerent war vessel talcing supplies from supply 
ship in neutral port. 

Solution 63 

Notes 63 

Jurisdiction over public vessels 63 

Marshall's opinion 64 

Later opinions of the courts 67 

Proclamation of 1870 68 

Domestic law of the United States 70 

British regulations 71 

Neutrality proclamations 71 

Rights of vessels in port 73 

Conclusions 76 


Situation V. — Neutral port as refuge to escape capture. 


Solution 79 

Notes 79 

The twenty-four hour rule 79 

Text writers' opinions 79 

The twenty-four hour rule in proclamations 84 

Conclusion in regard to twenty-four hour rule 87 

Internment 87 

Unmanned vessel in neutral port 87 

Asylum to vessels pursued by enemy. 89 

Opinion of Institute of International Law 91 

Internment in Russo-Japanese war 93 

Conclusion 93 

Situation VI. — Use by belligerent of neutral telegraph. 

Solution 94 

Notes 94 

(a) Eight to control telegraph 94 

Control by United States 95 

Hongkong-Manila cable in 1898 96 

Carriage of military dispatches 98 

Use of cables during Spanish-American war of 1898 99 

Attitude of foreign governments 100 

Conclusion 103 

(b ) Censorship by the government 103 

. Conclusion 104 

Situation VII. — Newspaper correspondents and wireless telegraph. 

Solution 105 

Notes 105 

(a) Treatment of correspondents 105 

Russian declaration, 1904 105 

Treatment of vessels ~ * 106 

Correspondents as spies 107 

Conclusion as to Russian declaration 108 

Control of newspaper correspondents 108 

Certification 109 

Conclusion 112 

(6) Regulations for the control of correspondents 112 

Japanese regulations, 1904 112 

Japanese naval regulations 114 

Effect of Japanese rules 114 

Russian regulations 114 

General scope of necessary regulations 115 

Conclusion 115 


Situation VIII. — Rescue of shipwrecked belligerents by neutral war 
vessel in foreign neutral Tiarbor. 


Solution 117 

Notes 117 

(a) Claimed as prisoners of war 117 

What constitutes a prisoner of war 117 

Reasons why these are not prisoners of war 118 

Public vessels in foreign ports 119 

Conclusion 120 

(6) Status of rescued crews 120 

Captain Mahan's proposition at The Hague 120 

Lawrence's opinion ". 122 

H«:<?ue Conference provisions 123 

Effect, of going on board public vessel 124 

Chin o- Japanese war of 1894-95 125 

Chemulpo affair, 1904 125 

Eileen's opinion 127 

Conclusions 128 

Situation EX. — Territorial jurisdiction of entrance to Tiarbor 10 

miles wide. 

Solution 129 

Notes 129 

Maritime jurisdiction in general 129 

Kent's extreme claim 129 

Russian provision 132 

French position in 1864 132 

Questions raised by the United States 134 

Questions raised by Professor Moore 136 

Position of Secretary Bayard 136 

Other opinions 137 

Headland doctrine 138 

Opinion of Institute of International Law, 1894 138 

Other opinions on headland doctrine 138 

Netherlands proclamation, 1904 140 

Conclusions 140 


Situation I. 

During a war between the United States and State X, 
a cruiser of the United States overtakes and visits a neu- 
tral merchant vessel bound, with no evidence of hostile 
intent and with innocent cargo, for an unblockaded port 
of State X. / 

The merchant vessel seems well adapted for conversion 
into an auxiliary cruiser. The officer of the United 
States cruiser mentions this fact to the captain of the 
merchant vessel. The captain points out that he is upon 
a regular voyage to a port of State X. 

What action, if any, should the commander of the 
United States cruiser take? 


From the statement of the situation there is no evi- 
dence that the vessel itself is engaged in unneutral serv- 
ice, is carrying contraband, or is about to attempt to run 
a blockade. Owing to the nature of its construction the 
vessel may easily be transformed into an enemy cruiser. 
Such a vessel is liable to seizure if destined to be sold or 
handed over to the enemy. The United States com- 
mander is therefore justified in making such inquiries as 
shall satisfy him that the vessel is bound upon an inno- 
cent voyage. If the evidence seems to show that the ves- 
sel is intended for sale to the enemy or for enemy service, 
the commander should send the vessel in for adjudication 
by the proper authorities. 


General attitude toward neutral commerce. — It is evi- 
dent from the statement of the conditions under which 
the merchant vessel was sailing that the vessel could not 
be seized on the ground of attempt to break a blockade, 



and also that the vessel is not guilty of carrying contra- 
band or at the time engaged in unneutral service. If no 
question is raised in regard to the construction of the 
vessel itself, the commander of the United States cruiser 
would without hesitation allow the neutral merchant 
vessel to proceed to her destination. 

The merchant vessel, however, seems well adapted for 
conversion into an auxiliary vessel for war purposes. 
The officer of the United States is, therefore, obliged to 
consider whether on that account such a vessel should 
be detained when upon a regular voyage to a port of 
an enemy. 

War upon the sea is becoming less and less an attempt 
to destroy innocent commerce. To capture all neutral 
vessels bound for enemy ports, provided they are so con- 
structed that they might be converted into vessels which 
could be used for hostile purposes, would be an unduly 
severe blow to neutral commerce. The traditional policy 
and the recent practice of the United States would 'seem 
to discountenance such action. The general attitude of 
the United States has been to interfere as little as possible 
with the freedom of neutral trade. It would seem that 
a liberal position should be taken in regard to seizure of 
neutral vessels, even when such vessels may be converted 
into naval vessels. 

Question of contraband. — On the other hand the value 
to the enemy of the vessels which are so constructed as 
to be easily adapted to serve for hostile purposes is very 
great. The classification of contraband of war, as set 
forth in declarations and other statements during the 
nineteenth century, does not cover the case of merchant 
vessels of the class under consideration except by a 
forced interpretation. The term " contraband of war" 
includes those articles only which have a belligerent des- 
tination and purpose. Such articles have been described 
as follows: 

'*1. Articles that are primarily and ordinarily used for military purposes 
in time of war, such as arms and munitions of war, military material, ves- 
sels of war, or instruments made for the immediate manufacture of muni- 
tions of war. 


" 2. Articles that may be and are used for purposes of war or peace, 
according to circumstances. 

"Articles of the first class, destined for ports of the enemy or places 
occupied by his forces, are always contraband of war. 

"Articles of the second class, when actually and especially destined for 
the military or naval forces of the enemy, are contraband of war." 

This classification is in accord with the best opinion 
and regular practice. It would not be possible to claim 
that this merchant vessel, bound for a regular destina- 
tion, falls under the designation of an article " primarily 
and ordinarily used for military purposes in time of war," 
unless further proof could be found than is evidenced in 
the situation as stated. 

Vessels of the class under consideration are of compara- 
tively recent development. They differ in status from 
other vessels on account of their adaptability to war 
purposes under certain circumstances. They also differ 
from the auxiliary or volunteer navy in that they have 
no direct relationship to the Government through con- 
tract or other agreement. 

Contraband of war has been viewed in recent years as 
consisting almost solely of articles carried upon vessels. 
Grotius, in 1625, gives three general classes: 

" 1. Those things which have their sole use in war, such 
as arms. 

"2. Those things which have no use in war, as articles 
of luxury. 

"3. Those things which have use both in war and out 
of war, as money, provisions, ships, and those things 
pertaining to ships.'' (De Jure Belli et Pacis. Bk. Ill, 
ch. 1, 5.) 

" Grotius regards articles of the first class as hostile, of 
the second as not a matter of complaint, and of the third 
as of ambiguous use (usus ancipitis), of which the treat- 
ment is to be determined by their relation to the war. 

" While the general principle may be clear, the applica- 
tion of the principle is not simple. Those articles whose 
sole use is in war are without question contraband. Ar- 
ticles exclusively for peaceful use are not contraband. 
Between these two classes are many articles in regard to 


which both practice and theory have varied most widely. 
The theorists have endeavored to give the neutral the 
largest possible liberty in commerce on the ground that 
those who were not parties to the war should not bear 
its burdens. This has been the opinion most approved 
by the jurists of Continental Europe. Great Britain and 
the United States have been inclined to extend the range 
of articles which might on occasion be classed as contra- 
band." (International Law, AVilson and Tucker, p. 303.) 
Even the Supreme Court in the frequently cited case of 
the Peterhojj, says, "The classification of goods as con- 
traband has much perplexed text writers and jurists. A 
strictly accurate and satisfactory classification is perhaps 
impracticable." (5 Wallace, 28.) It is evident from 
the study of the history of contraband that the classifica- 
tion of contraband changes as the methods and instru- 
ments of warfare vary. The main question is whether 
the article is or is not intended for military use. The 
term " contraband" is usually applied to cargo of ships 
and merchandise transported upon ships. There is no 
reason why the ship itself may not become itself merchan- 
dise when an object of sale for warlike purposes. That 
it may move under its own power makes no difference; 
it may become an object of trade, and as such its charac- 
ter may be determined by the use which it is to serve. 

This merchant vessel is, as the officer of the United 
States cruiser points out, adapted for conversion into an 
auxiliary cruiser and is bound for an enemy port. The 
vessel is therefore capable of a double use, and may easily 
become a greater source of injury to the United States 
than many objects of conditional contraband. 

There is no question that the vessel will come under 
the belligerent control on arrival at its destination. 
This being the case there can be no objection raised to 
the sale of the vessel itself or even to its seizure in an 
extreme case. It may not be the intent of the owner 
of the merchant vessel to sell it on arrival at its destina- 
tion, but as Dana says of contraband, "'The truth is, the 
intent of the owner is not the test. The right of the 
belligerent to prevent certain things getting into the mili- 


tary use of the enemy is the foundation of the law of 
contraband, and its limits are, as in most other cases, 
the practical result of the conflict between this bellig- 
erent right on the one hand and the right of the neutral 
to trade with the enemy on the other." Dana also says, 
"I am inclined to the opinion that an actual intent to 
deliver articles capable of military use directly into mili- 
tary hands condemns the articles, at all events, as a vol- 
untary intervention of their owner in the war; and that, 
whether there be or be not such an intent, the belligerent 
may capture certain articles because of their destination 
to a place where they will come under the enemy's con- 
trol and so may be used by the enemy in direct military 
operations." Later, speaking of goods that are capable 
of a double use, Dana says, " Although nothing be devel- 
oped as to the owner's intent, yet if the condition of the 
port of destination, or the character and state of the war, 
make it satisfactorily appear that they will, in all prob- 
ability, go directly into military use, or directly tend to 
relieve an enemy from hostile pressure, the right of the 
belligerent to intercept them may be exercised solely for 
those reasons." (Dana's Wheaton's International Law, 
n. 226, pp. 633, 634; also Kleen, La Neutrality I, sec. 92.) 
Grounds for commander's judgment. — The intent of the 
owner may not be known to the captain of the merchant 
vessel, and in the case under consideration it is not such 
as to determine the action of the United States officer. 
His action must be determined by the nature of the thing 
itself, not by intent of the owner or person in control, 
for the intent is not capable of definition and determina- 
tion. The intent of the owner or captain is a fact that, 
while significant, is not the final test. The nature of 
the vessel is, however, capable of determination. The 
simple fact is that the vessel which is adapted for con- 
version is bound for an enemy port. The vital question 
is, will this vessel, if permitted to continue her voyage 
without restraint, become an instrument of hostility 
against the United States ? The nature of its construc- 
tion makes this a possible or even a probable event, 
unless there be some guaranty to the contrary. It is 


plainly the duty of the officer to consider what would be 
the condition with respect to the successful continuance 
of hostilities after this vessel has arrived within the 
enemy port. There is no doubt that there would be 
potentially an increase in the possible naval resources of 
the enemy, for this vessel may be purchased or seized 
even if necessary. This being the case, under present 
conditions it is the duty of the United States officer to 
guard against such increase. Such a vessel may be con- 
traband even under the classification of contraband made 
so early as in the days of Grotius. (De Jure Belli et 
Pacis, Bk. Ill, ch. 1, 5.) 

"The law as regards the sale of ships to belligerents is 
in a state of transition, and, as was to be expected, the 
most severe restrictions in this respect are placed upon 
British shipbuilders and owners. Recently the state of 
law was summed up as follows: 'An international usage 
prohibiting the construction and outfit of vessels of war 
is in course of growth, but it is not yet old enough, or 
quite wide enough, to have become compulsory on those 
nations which have not yet signified their voluntary 
adherence to it.' The difficulty with regard to ships 
not built primarily as men-of-war lies in the fact that 
few fast steamers are altogether unfitted to receive an 
armanent of some kind. The extremes of practice with 
regard to Russia and Japan are to be found in the action 
of Great Britain and Germany. This country, having 
men-of-war under construction for Japan, has publicly 
announced in her declaration of neutrality that no ships 
will be allowed to be delivered until after the war. Ger- 
many, on the other hand, has sold to Russia one of the 
large and fast mail steamers of the Hamburg-American 
line, a ship fitted by her construction to be used as an 
'auxiliary' cruiser, as well as other ships of less impor- 
tance." (L. G. Carr Laughton, "Belligerents and neu- 
trals," The United States Service Magazine, June, 1904, 
p. 231.) 

Such vessels are of a comparatively late form of con- 
struction. Consequently, their status has not been set- 
tled by many precedents. 


From the nature of the construction the indications 
are that the vessel under consideration is fitted with a 
view to hostile use in case that it is advisable to so use 
the vessel. There is, therefore, evidence sufficient to 
warrant the commander of the cruiser in demanding 
further proof than the simple statement of the captain 
of the merchant vessel that he is upon his regular voy- 
age. The burden of proof of innocent intent may prop- 
erly be placed upon the merchant captain and should be 
thus placed in cases of this kind. This is not an undue 
hardship upon neutrals, as the vessel is of a character 
easily approximating contraband. 

"As a general rule a neutral has a right to carry on such 
trade as he may choose with a belligerent. But the 
usages of war imply the assumption that the exercise 
of this right is subjected to the condition that the trade 
of the neutral shall not be such as to help the belligerent 
in prosecuting his own operations or in escaping from the 
effects of those of his enemy. When neutral commerce 
produces this result the belligerent who suffers from the 
trade is allowed to put it under such restraint as may be 
necessary to secure his freedom of action." (Hall, Inter- 
national Law, 5th ed., p. 505.) 

The commander in protecting his county, if he has 
any ground for belief that sale might be made, could 
demand further evidence or even a guaranty that the 
vessel is not proceeding to the port of X for sale, or 
even might allow the vessel to proceed only on condition 
that it would not be sold to the enemy. This would not 
be an interruption of the peaceful commerce of the 
enemy, but only a proper measure to guard against the 
increase of the fighting power of the enemy. Should 
the captain of the merchant vessel be unwilling to give 
such guaranty as he is competent to give that the vessel 
wil] not be sold to the enemy at port X, this may be a 
ground for sending the vessel in for adjudication by 
a prize court. 

It is certain that such vessels as are under hostile gov- 
ernment contract or subsidy can not be allowed the same 
freedom as is allowed to ordinary commercial vessels. 


It is also certain that there is a point at which the ordi- 
nary commercial vessel will merge into the vessel easily 
adapted for conversion into an auxiliary cruiser. 

Some special considerations. — The commander of the 
visiting war vessel must decide on each case upon the 
evidence from all points of view, and in case of doubt it 
is safer to allow the courts to decide. He should take 
into consideration not only the construction of the ves- 
sel, but also such matters as the need of State X for such 
vessels, the practice of the State in regard to purchase 
and seizure of such vessels, the need for such vessels for 
warlike purposes in the port to which the vessel in ques- 
tion is sailing, the number of times this vessel has made 
this voyage to the port of X since the outbreak of hos- 
tilities, the responsibility and sincerity of the owners of 
the vessel, and the like. 

In many instances it is wiser to incur the risk that the 
United States may have to pay indemnity for the delay 
of such a vessel rather than to incur the risk which would 
come from the addition of such a vessel to the navy of 
an enemy. 

It is certain that such vessels will become a subject for 
consideration and that they can not be regarded as other 
than contraband in some instances. When so regarded, 
an officer would be justified by international law in seiz- 
ing the vessel as itself contraband. Whether it will be 
the policy of the United States to place such vessel in 
its list of contraband, and what the decisions of courts 
will be in regard to goods, etc., upon such vessels, is not 
here considered. 

Russian declaration, 190 4. — The position of Russia 
makes such vessels contraband, as shown in the " Rules 
which the Imperial Government will apply during the 
war with Japan," 1904. 

VI. Sont consideres comme contrebande de guerre lesobjets suivants: . . . 

(6) Les biitiments se rendant dans un port ennemi meme sous pavilion 
de commerce neutre, si d'apres leur construction, leur amenagement inte- 
rieur et d'autres indices, il y a evidence qu'ils sont construits dans un but 
de guerre et se dirigent vers un port ennemi pour y etre vendus ou remis 
a l'ennemi. 


This clause has been translated in the Official Notice 
of the British Board of Trade, March 18, 1904, as follows: 

The following articles are deemed to be contraband of war: 
(6) Vessels bound for an enemy's port, even if under a neutral commercial 
flag, if it is apparent from their construction, interior fittings, and other 
indications that they have been built for warlike purposes and are proceed- 
ing to an enemy's port in order to be sold or handed over to the enemy. 

From the above it is evident that Russia would regard 
a vessel sailing, as is the vessel under consideration in 
the Situation, for its regular post of call, as free unless 
there is evidence that she is " proceeding to an enemy's 
port in order to be handed, over to the enemy." 

Doctor Lushington earlier took practically the same 
position in stating that British commanders are directed 
to detain as contraband a vessel "If she is fitted for 
purposes of war as well as commerce, and it appears that 
she is destined for the enemy's government to be used 
as a vessel of war." (Naval Prize Law, par. 207.) 

Conclusion. — If this vessel is destined to be sold to the 
enemy for warlike purposes, it is plainly the duty of the 
commander to seize the vessel. There is evidence that 
it may easily be converted to such purpose. The com- 
mander should therefore take such measures as will give 
to him reasonable assurance that the vessel, though easily 
adaptable to warlike uses, will not come into the hands 
of the enemy for such uses. 

18239—05 2 

Situation II. 

War exists between States X and Y. The United States 
is neutral. A port of State X is placed under martial law. 
Mr. B, a citizen of the United States, residing and doing 
business at the port, is seized, imprisoned, and about to 
be deported without trial. He appeals to the-commander 
of a United States war vessel who chances to be the only 
representative of the United .States in the region. 

What action, if any, is the commander justified in 
taking ? 


The commander of the United States war vessel would 
be justified in requesting that Mr. B be not arbitrarily 
deported without trial, that he have a prompt and fair 
trial by a military court or commission, and if the military 
exigencies make a trial impracticable, he would be justi- 
fied in requesting that Mr. B be placed in his custody. 


Nature of martial law. — Silent leges inter arma is a com- 
mon dictum of municipal law. This has been repeatedly 
recognized by the Government of the United States. 
The ordinary courts refuse to interfere with the course 
of military judgment as enforced by courts-martial. As 
affirmed by the Supreme Court in the case of Dynes v. 
Hoover (20 How., 65), "With the sentences of courts- 
martial which have been convened regularly, and have 
proceeded legally, and by which punishments are directed 
which are not forbidden by law, or which are according 
to the laws and customs of the sea, civil courts have noth- 
ing to do, nor are they in any way alterable by them." 

As Halleck says: 

It is necessary to distinguish between military and martial law: for the two 
are very different. In Great Britain the former has only to do with the land 
forces mentioned in section 2 of the Mutiny Act — now the Army Act, 1881 — 
and the Articles of War. In the United States the Rules and Articles of 



War constitute the Military law. This law exists equally in peace and in war, 
and is as fixed and definite in its provisions as the Admiralty, Ecclesiastical, 
or any other branch of law, and is equally with them a part of the general 
law of the land. But Martial law originates either in the prerogative of the 
Crown, as in Great Britain, or from the exigency of the occasion, as in other 
States; it is one of the rights of sovereignty, and is as essential to the 
existence of a State as is the right to declare or carry on war. It is a power 
inherent in every Government, and must be regarded and recognized by all 
other Governments. It is one of the incidents of war, invasion, or rebellion; 
and arises when there is no time for the slow and cumbrous proceedings of 
the Civil law. Like the power to take human life in battle, it results directly 
and immediately from the fact that war in name or in substance exists. 
(Halleck's International Law, Baker's ed., vol. 1, p. 544.) 

Application to Mr. B. — Mr. B, in the case under consid- 
eration, is a citizen of the United States residing and doing 
business in the port of State X. This port is under martial 
law. He is not exempt by virtue of his United States 
citizenship from any of the legitimate consequences of 
war. The Instructions for the Government of Armies of 
the United States in the Field provide (Section 1, 7) that 
"martial law extends to property, and to persons, 
whether they are subjects of the enemy or aliens to that 
Government." These Instructions, which have been 
generally approved as liberal by other States of the world, 
also provide (Section 1, 5) that " martial law should be 
less stringent in places and countries fully occupied and 
fairly conquered. Much greater severity may be exer- 
cised in places or regions where actual hostilities exist, 
or are expected and must be prepared for. Its most com- 
plete sway is allowed, even in the commander's own 
country, when face to face with the enemy, because of the 
absolute necessities of the case, and of the paramount 
duty to defend the country against invasion." 

These rules of war indicate the propriety of the suspen- 
sion of the ordinary legal processes during the actual 
hostilities. This position has also been sustained by the 
Supreme Court of the United States. 

" If in foreign invasion or civil war, the courts are actu- 
ally closed, and it is impossible to administer criminal 
justice according to law, then, on the theater of active 
military operations, where war really prevails, there is 
necessity to furnish a substitute for the civil authority, 


thus overthrown, to preserve the safety of the a. my and 
of society; and as no power is left but the military, it is 
allowed to govern by martial rule until the laws can have 
their free course. As necessity creates the rule, so it 
limits its duration; for, if this Government is continued 
after the courts are reinstated, it is a gross usurpation of 
power. Martial rule can never exist where the courts are 
open, and in the proper and unobstructed exercise of their 
jurisdiction. It is also confined to the locality of actual 
war." (Ex Parti MiUigan 4, Wallace 2. Mr. Justice 
Davis delivered the opinion.) 

The fact that Mr. B, the citizen of the United States, 
was doing business in State X gave to him a more com- 
plete connection and interest in the affairs and destiny 
of State X than would the simple fact of temporary 

Risley (Law of War, p. 93) says: 

Where a person of whatever nationality, or his property, or a tract of 
territory, becomes connected with the enemy State in such a manner as to 
be a source, directly or indirectly, of strength and assistance to that State, 
such person, property, or territory must be regarded as being subject to or 
belonging to the enemy, and acquires an enemy character. 

Enemy character as attaching to persons and their property may arise 
from permanent allegiance to and residence within the territory of the 
adverse belligerent, in which case it is complete; or it may be of a partial 
and temporary nature, limited to certain intents and purposes, arising from 
such particular circumstances as having possessions in enemy territory, or 
maintaining a house of commerce there, from personal residence there, 
or from particular modes of traffic, such as sailing under the enemy's flag 
or passport. 

By this manner a belligerent's own subject or a neutral subject may 
acquire an enemy character depending upon a kind of implied temporary 
allegiance to the enemy State: but as soon as he chooses to terminate his 
hostile allegiance he terminates his hostile character. 

As well stated by Davis (Elements of International 
Law, p. 333) — 

Martial lav, or to speak more correctly military rule, or the law of hostile 
occupation, is a term applied to the government of an occupied territory by 
the commanding general of the invading force. Martial law also prevails 
in the immediate theater of operations of an army in the field. The 
reason in both cases is the same. The ordinary agencies of government, 
including the machinery provided for the prevention and punishment of 
crime, are suspended by the fact of war. This suspension takes place at a 


time when society is violently disturbed, when the usual restraints of law 
are at a minimum of efficiency, and when the need of such restraint is the 
greatest possible. This state of affairs is the direct result of the invasion, or 
occupation, of the disturbed territory by an enemy. The only organized 
power capable of restoring and maintaining order is that of the invading 
force, which is vested in its commanding general. 

Upon him, therefore, international law places the responsibility of pre- 
serving order, punishing crime, and protecting life and property within the 
limits of his command. His power in the premises is equal to his responsi- 
bility. In cases of extreme urgency, such as arise after a great battle, or the 
capture of a besieged place or a defended town, he may suspend all law and 
may punish crimes summarily, or by tribunals of his own constitution. . . . 
He appears in the occupied territory as an agent of his government, charged 
with the conduct of certain military operations. His first responsibility is 
to his own government for the successful conduct of the military operations 
with the direction of which he is charged. In carrying on those operations 
his government and himself are bound by the laws of war. The usages of 
war authorize him to employ certain forcible measures toward his enemy. 
They forbid indiscriminate violence, the use of excessive force, or the use of 
any force which does not contribute directly to the end for which the war is 
undertaken. His exercise of authority in the occupied territory must, 
therefore, be the least possible, consistent with these ends. 

Position of Department of State.- — During the revolution 
in Hawaii, in 1895, the following telegram was sent by 
Mr. Gresham, Secretary of State, to Mr. Willis: 

Department of State, 

Washington, February 25, 1895. 
With reference to your telegram of the 17th instant, touching the impris- 
onment or condemnation of numerous persons in connection with the recent 
disturbance in Hawaii, I observe your statement that 13 American citizens 
are still in prison without charges and without trial. This Government has 
no disposition to be exacting with that of Hawaii, especially under present 
circumstances, but it owes a duty to its citizens to see to it that they are not 
wantonly subjected to arbitrary treatment. Though martial law has been 
proclaimed, it does not follow that aliens innocent of participation in the 
acts which gave rise to its proclamation may be arrested and indefinitely 
imprisoned without charges and without trial. The existence of martial 
law, while it may imply the suspension of the methods and guaranties by 
which justice is ordinarily secured, does not imply a suspension of justice 
itself. You are instructed to insist to the Hawaiian Government that the 
American citizens still imprisoned without charge and without trial shall be 
promptly tried or promptly released. 


The letter of Mr. Gresham to Mr. Willis of the same date 
with the above telegram, also defines the position of the 
United States in a special instance. It may be stated in 


advance that the Mr. J. Cranstoun mentioned below was 
subsequently shown not to be an American citizen. The 
letter is as follows : 

No. 66.] Department of State, 

Washington, February 25, 1895. 

Sir: I have to acknowledge the receipt of your No. 86 of the 8th instant, 
in relation to affairs in Hawaii, and particularly in relation to the forcible 
deportation on the 2d instant of three men, one of whom, Mr. J. Cranstoun, 
claims to be a citizen of the United States. 

I inclose herewith copies of certain depositions made by Mr. Cranstoun 
on the 11th and 12th instant, before Mr. Peterson, the commercial agent of 
the United States at Vancouver. These depositions leave the question of 
Mr. Cranstoun's nationality in doubt, and Mr. Peterson has been instructed 
to obtain further statements from him on that subject. 

Under these circumstances, the Department does not now instruct you 
to make any representations to the Hawaiian Government in regard to Mr. 
Cranstoun, but it is proper to express to you, for your own guidance in 
similar cases, should they arise, the views here entertained in regard to the 
course of action taken in that case. 

It appears that after having been kept in jail for nearly a month, without 
any charges having been made against him, he was taken under a heavy 
guard to a steamer and would, in spite of his request to you, have been 
deported without having had an opportunity then to do so had it not been 
for the accidental but timely interposition of the British commissioner. 

You state that when you asked the attorney-general for an explanation 
of the proceeding he replied that the cabinet had determined to deport the 
men "in the exercise of the arbitrary power conferred by martial law." 
As this was the only explanation he gave, it is presumed it was all he had 
to offer, and he gave it without suggestion of any question as to Mr. Crans- 
toun's nationality. 

If the position thus assumed be sound, the very proclamation of martial 
law in Hawaii renders all foreigners there residing, including Americans, 
liable to arrest and deportation without cause and without any reason other 
than the fact that the executive power wills it. They may be taken from 
their homes and their business; they may be deprived of their liberty and 
banished; they may be denied the ordinary as well as the special treaty 
rights of residence without offense or misconduct on their part, simply in 
the exercise of "arbitrary power." 

To state such a proposition is, in the opinion of the President, to refute it. 
"Truly viewed," says an eminent author, "martial law can only change the 
administration of the laws, give them a rapid force, and make their penal- 
ties certain and effectual — not abrogate what was the justice of the com- 
munity before The civil courts are in part. or fully suspended, but, in 
reason, the new summary tribunals should govern themselves in their pro- 
ceedings, as far as circumstances admit, by established principles of justice 
the same which had been recognized in the courts." (Bishop's Criminal 
Law, sec. 4.5.) 


In view of what has been stated, your course in protesting against the 

position assumed by the attorney-general of Hawaii is approved. 

I am, etc., 

W . Q. Gresham. 
(U. S. Foreign Relations, 1895, p. 842.) 

Position of the War Department. — A late opinion ren- 
dered to the War Department of the United States by 
Hon. Charles E. Magoon, law officer, Bureau of Insular 
Affairs (The Law of Civil Government Under Military 
Occupation, p. 12), says: 

It will be seen that a military government takes the place of a suspended 
or destroyed sovereignty, while martial law or, more properly, martial rule, 
takes the place of certain governmental agencies which for the time being 
are unable to cope with existing conditions in a locality which remains sub- 
ject to the sovereignty. 

The occasion of military government is the expulsion of the sovereignty 
theretofore existing, which is usually accomplished by a successful military 

The occasion of martial rule is simply public exigency, which may arise 
in time of war or peace. 

A military government, since it takes the place of a deposed sovereignty 
of necessity continues until a permanent sovereignty is again established 
in the territor}\ Martial rule ceases when the district is sufficiently tranquil 
to permit the ordinary agencies of government to cope with existing con- 

The power of such government, in time of war, is a large and extraordi- 
nary one, being subject only to such conditions and, restrictions as the laws 
of war impose upon it. 

As was said by the United States Supreme Court, such governing author- 
ity "may do anything necessary to strengthen itself and weaken the enemy. 
There is no limit to the powers that may be exerted in such cases save those 
which are found in the laws and usages of war. ... In such cases 
the laws of war take the place of the Constitution and laws of the United 
States as applied in the time of peace." (New Orleans v. Steamship Co., 
20 Wall., 394.) 

Commenting on this view of the law, the Texas supreme court say: "This 
language, strong as it may seem, asserts a rule of international law recog- 
nized as applicable during a state of war." (Daniel v. Hutcheson, 86 
Texas, 61.) 

Martial rule, as exercised in any country by the commander of an invad- 
ing army, is an element of jus belli. It is incidental to a state of war and 
appertains to the law of nations. The commander of the occupying army 
rules the territory within his military jurisdiction as necessity demands and 
prudence dictates, restrained by international law and obligations, the 
usages and laws of war, and the orders of his superior officers of the govern- 
ment he serves and represents. 


Conclusion. — It is evident that the commander in a 
region under martial law has a right to exercise such a 
measure of control of all inhabitants of the region, 
whether natives or foreigners, as military operations may 
require, and only that degree of force should be used 
which is necessary to accomplish the end of the war. 
Tins end can not be brought about more speedily by 
inflicting undue hardships on the innocent population- 
indeed, such action often prolongs hostilities. 

In the case of Mr. B, the citizen of the United States, 
at a port of State X, which port is under martial law, it 
is proper, according to the position of the United States 
Government, that the ordinary processes of law should 
be hastened, because the existence of such a state of jur- 
isdiction implies that ordinary court processes are not 
sufficiently effective to meet immediate exigencies. 

Even though Mr. B is an alien in State X, the fact that 
he has been residing and doing business at the port ren- 
ders him liable to the consequences of his sojourn in the 
time of war, provided the commander declaring martial 
law does not exceed his authority in the action toward 
Mr. B. 

The seizure of Mr. B is an act which is within the field 
of proper authority of the commander enforcing martial 
law. The temporary imprisonment may be and often is 
necessary in the time of martial law. Imprisonment 
without trial, however, may be only for the period of 
absolute military necessity. Martial law does not imply 
the absence of justice in the treatment of the population 
which may be under it for the time being , but rather the 
acceleration of the course of justice. As deportation and 
imprisonment for a considerable time without trial would 
imply the absence or denial of proper procedure under 
generally recognized principles of international law, the 
commander of the United States war vessel would be 
justified in hearing the appeal of the citizen of the United 
States, Mr. B. He would be further justified in asking 
for Mr. B a fair trial by a military court or commission. 

If the military exigencies make such a trial impracti- 
cable, the commander of the United States war vessel 


would be justified in requesting that Mr. B be placed in 
his custody, in which case he would be under obligation 
to see that Mr. B conducts himself in a proper manner 
with regard to the authorities controlling the port. 

Such action would accord with the general principles 
of justice and would be according to the instructions of 
the Department of State in the cases in Hawaii in 1895, 
when the Secretary said — 

You are instructed to insist to the Hawaiian Government that the Amer- 
ican citizens still imprisoned without charges and without trial shall be 
promptly tried or promptly released. 

The fundamental fact in all cases where martial law is 
declared is that it does not establish arbitrary authority 
without regard to law in the commander of the region, but 
accelerates the course of justice so far as the military 
necessities at the time demand. 

Situation III. 

There is an insurrection in State X, during which the 
following situations arise: 

(a) Certain insurgent troops are pursued by the regular 
troops of State X. The insurgent troops seek and are 

f ranted asylum in the legation of the United States, 
he minister of the United States becomes alarmed and 
asks the commander of a United States war vessel in the 
harbor to receive the insurgents on board his vessel in 
order to prevent bloodshed, which is imminent. 
What should the commander do, and why? 

(b) The insurgents seize the Robin, a United States 
merchant vessel in the harbor, and, promising to recom- 
pense the owners, sail away with the vessel. The owners 
of the Robin request the commander of the United States 
war vessel to recover the Robin in case he meets the ves- 
sel. The commander meets the Robin on the high sea. 

What, if anything, should the commander do? 

(c) State X charters a United States merchant vessel 
to transport troops to the seat of the insurrection. When 
the vessel is about to land these troops it is captured by 
the insurgents. The captain of the United States mer- 
chant vessel appeals for assistance to the commander of 
a United States war vessel near by. 

What action, if any, should he take ? 
Would he act otherwise if the troops of State X had 
been landed before the capture of the vessel ? 

(d) Mr. Smith, a citizen of the United States, is impli- 
cated in this insurrection in State X and is sent out of the 
country. Mr. Smith, as a passenger upon a vessel of 
State Y, subsequently enters a port of State X. He is 
thereupon arrested by the authorities of State X. He 
then appeals to the commander of a United States war 
vessel to obtain his release, stating that the action of the 
authorities of State X was illegal and unjustifiable. 

What action, if any, should the commander take? 

Situation III, (a). 

There is an insurrection in State X, during which the 
following situation arises: 

(a) Certain insurgent troops are pursued by the reg- 
ular troops of State X. The insurgent troops seek and 



are granted asylum in the legation of the United States. 
The minister of the United States becomes alarmed and 
asks the commander of a United States war vessel in 
the harbor to receive the insurgents on board his vessel 
to prevent bloodshed which is imminent. 
What should the commander do, and why 4 


The commander should reply to the minister that he 
has no authority to promise to receive or directly or 
indirectly to .invite any refugees on board his vessel, 
and that he can only judge in regard to the propriety of 
the reception of any such person or persons when they 
appear at the vessel requesting asylum. 


Reception to bodies of men. — This situation again 
raises the question of interpretation of article 308 of the 
United States Naval Regulations of 1900, which was 
somewhat fully discussed under Situation II in 1902. 
This regulation is as follows: 

The right of asylum for political refugees has no foundation in interna- 
tional law. In countries, however, where frequent insurrections occur, 
and constant instability of government exists, usage sanctions the granting 
of asylum; but even in the waters of such countries officers should refuse 
all applications for asylum, except when required by the interests of 
humanity in extreme or exceptional cases, such as the pursuit of a refugee 
by a mob. Officers must not directly or indirectly invite refugees to 
accept asylum. 

In Situation II, of 1902, the question of the propriety 
of a promise of asylum in advance of the emergency was 
discussed and the propriety of such promise was denied. 

The case now under consideration finds certain insur- 
gent troops already granted refuge in the legation of 
the United States. 

Cases of asylum. — The minister of the United States 
may claim some weight of precedent for his request in 
the case of the reception of various members of the 
defeated faction after the battle of Placillas, in Chile, 
in 1891. The telegram from the United States legation 
on September 7, 1891, states that a number of the sup- 
porters of the Government of Chile, "in order to save 


their lives, which certainly would have been sacrificed, 
took refuge on board the German and United States 
ships of war." (U. S. Foreign Relations, 1891, p. 161.) 
Later refugees from the legation of the United States, 
and from the Spanish legation, were received on board a 
United States war ship, and were accompanied to the 
ship by ministers of the United States, Spain, and Italy. 
Brazil, 189 %. — In 1894, on the suppression of* the 
Brazilian insurrection, the leaders and some of the 
other insurgents were received on board a Portuguese 
man-of-war. Mr. Gresham, at that time Secretary of 
State, sent the following dispatch to Mr. Bayard: 

No. 342.] Department of State, 

Washington, April 6, 1894- 

Sir: You are doubtless aware that the night before the final collapse 
of the insurgent movement in the bay of Rio de Janeiro, da Gama, the 
insurgent leader, and some of his subordinate officials, were received on 
board a Portuguese man-of-war in the harbor. About two weeks ago the 
British ambassador here informed me that the Brazilian Government had 
demanded of Portugal the surrender of these men, and that the latter 
Government had offered to land them somewhere beyond the jurisdiction 
of Brazil, and there detain them until the fate of the insurrection should 
be known, when their right of asylum under the circumstances could be 
determined. Sir Julian was instructed, he said, by his Government to ask 
the United States to join Great Britain in a friendly suggestion to the Gov- 
ernment of Brazil that it accept this offer of Portugal. I submitted the 
matter to the President and, after full consideration, he instructed me to 
inform Sir Julian that the United States did not feel inclined to join in 
the suggestion. A day or two later a substantially similar request was 
received from the Government of Italy, through Mr. Thompson, our 
minister at Rio, and answered in the same way, and within the last week a 
direct request to the same effect from the Portuguese Government, through 
its minister here, has been declined. 

I am, etc., W. Q. Gresham. 

(U. S. Foreign Relations, 1894, p. 278.) 

Korea, 1895. — In Korea, in 1895, certain refugees 
sought the legation of the United States, and were re- 
ceived within it. At that time the United States repre- 
sentative at Seoul sent the following telegram to the 
Department of State: 

Seoul, December 1, 1895. 
Olney, Washington: 

Three days ago loyalists made a fruitless attempt to capture royal 

palace, in consequence of which usurpers are very bold, arresting and 

killing loyalists. I have 8 refugees. See my dispatch No. 159. Xo 


charge made against them, but if caught they will be tortured and killed 

by the King's father. A demand may soon be made for them for some 

reason or other. It is desirable for them to leave. Yorktown will shortly 

leave for Shanghai. Will you authorize commander in chief to grant 

them passage? 


Mr. Sill subsequently explained that his intention 
was to prevent injury to the refugees. He says in a 
dispatch of January 20, 1896: 

I had at no time supposed that the refugees could be sheltered by me 
" against officers of the de facto Government charged with apprehending 
them as violators of the laws of their country." On the contrary, they 
had been informed by me that I must at any time give them up upon 
proper demand from the Korean Government; hence my desire to get 
them out of the way before any demand for them should be served on me. 

To the telegram mentioned above, Mr. Olney made a 
very positive reply, as follows : 

Department of State, 

Washington, December 2, 1895. 
Sill, Minister, Seoul: 

Refugees can not be sheltered by you against officers of de facto govern- 
ment charged with apprehending them as violators of the laws of their 
country. Use of Yorktown in manner suggested is wholly inadmissible. 
The Department sees with disfavor your disposition to forget that you 
are not to interfere with local concerns and politics of Korea, but are to 
limit yourself strictly to the care of American interests. 


(U. S. Foreign Relations, 1895, pp. 974, 977.) 

Development o] policy in regard to asylum. —The general 
attitude toward asylum in legations and upon vessels 
of war has in recent years become less and less favorable. 
In some of the early diplomatic correspondence of the 
United States asylum was regarded with favor. In 
1844 Mr. Calhoun wrote to the representative in Brazil 
that, "The right of asylum in revolutionary times and 
in revolutionary countries should be indulgently con- 
strued." During the latter half of the nineteenth 
century the policy of the United States has been to 
discourage the granting of asylum. In countries outside 
of those in the Western Hemisphere the granting of 
asylum has been reduced to the narrowest limits and 
almost prohibited. In Central and South American 
States, and in the West Indies, there have been, however, 
frequent instances of the exercise of this means of protec- 


tion to refugees. Even in these countries the United 
States has tried to discourage the practice in late years. 
This is shown in a dispatch of Mr. Seward to Mr. Hollister, 
May 28, 1S6S, in which Mr. Seward says: 

The revolutionary condition seemed to have become chronic in many 
of the South American nations after they had achieved their independence, 
and the United States, as well as the European nations, recognized and 
maintained the right of asylum in their intercourse with those republics. 
We have, however, constantly employed our- influence for several years 
to meliorate and improve the political situation in these republics, with 
an earnest desire to relinquish the right of asylum there. 

Secretary Fish, in a dispatch to Mr. Bassett June 4, 
1875, speaking of persons who have sought asylum in the 
United States legation in Port au Prince in the time of 
civil disturbances, says: 

It is regretted that you deemed yourself justified by an impulse of hu- 
manity to grant such an asylum. You have repeatedly been instructed 
that such a practice has no basis in public law, and so far as this Govern- 
ment is concerned, is believed to be contrary to all sound policy. The 
course of the diplomatic representatives of other countries in receiving 
political refugees upon such occasions is not deemed sufficient to warrant 
this Government in sanctioning a similar step on the part of the repre- 
sentatives of the United States. 

Later, in 1883, Mr. Frelinghuysen says of this same 
correspondence : 

The views of this Government as to the right of asylum have long been 
well known. You will find them in the correspondence of this Department 
with your predecessor, Mr. Bassett. * * * While indisposed from 
obvious motives of common humanity to direct its agents to deny temporary 
shelter to any unfortunates threatened with mob violence, it is proper 
to instruct them that it will not countenance them in any attempt to 
knowingly harbor offenders against the laws from the pursuit of the legiti- 
mate agents of justice. 

(For many references, see 1 Wharton's Digest, sec. 104.) 

Mr. Olney, in 1895, says that it is "the uniform rule 
of this Government to discountenance asylum in every 
form, and to enjoin upon its agents the exercise of the 
utmost care to avoid any imputation of abuse in granting 
such shelter. It may be tolerated as an act of humanity 
when the hospitality afforded does not go beyond 
sheltering the individual from lawlessness. It may 
not be tolerated should it be sought to remove a subject 


beyond the reach of the law to the disparagement of the 
sovereign authority of the State." (Foreign Relations, 
1895, p. 246.) 

Mr. Hay, in 1899, says, "It is evident that a general 
rule, in the abstract, can not be laid down for the inflex- 
ible guidance of the diplomatic representatives of this 
Government in according shelter to those requesting it. 
But certain limitations to such grant are recognized. 
It should not, in any case, take the form of a direct or 
indirect intervention in the internecine conflicts of a 
foreign country, with a view to the assistance of any 
of the contending factions, whether acting as insurgents 
or as representing the titular government." (Foreign 
Relations, 1899, p. 258.) 

From the instances cited above, and from many other 
instances where the opinion of the Government of the 
United States has been expressed, it is evident that the 
attitude of the United States is to discourage the grant 
of asylum to the utmost, and to limit its grant to cases 
where mob violence is threatened, or where the ordinary 
course of government is interrupted. This same ten- 
dency of restriction is evident in other countries as well 
as in the United States. 

Attitude toward insurgent troops. — In the case under 
consideration the insurgent troops have sought the 
shelter of the legation to escape the consequences of war, 
which as troops they had waged upon the regular govern- 
ment. In sheltering these troops from the regular troops 
the minister of the United States has in a measure taken 
the part of the insurgents against the established govern- 
ment. Such action has repeatedly been disavowed by 
the United States Government. If these insurgent troops 
have engaged in hostilities against the established 
government they are liable to the consequences of their 
action, and it is not the function of representatives of 
the United States to protect them from such conse- 
quences. As Mr. Fish said, in 1875: 

Among other objections to granting such asylum it may be remarked 
that that act obviously tends so far to incite conspiracies against govern- 
ments, that if persons charged with offenses can be sure of being screened 


in a foreign legation from arrest they will be much more apt to attempt 
the overthrow of authority than if such a place of refuge were not open 
to them. 

The printed Instructions to the Diplomatic Officers of 
the United States, issued by the Department of State 
declare that — 

The privilege of immunity from local jurisdiction does not embrace the 
right of asylum for persons outside of a representative's diplomatic or 
personal household. 

In some countries, where frequent insurrections occur and consequent 
instability of government exists, the practice of extraterritorial asylum has 
become so firmly etsablished that it is often invoked by unsuccessful insur- 
gents and is practically recognizd by the local government, to the extent 
even of respecting a consulate in which such fugitives may take refuge. 
This Government does not sanction the usage and enjoins upon its repre- 
sentatives in such countries the avoidance of all pretexts for its exercise. 
While indisposed to direct its representatives to deny temporary shelter to 
any person who may be threatened by mob violence, it deems it proper to 
instruct them that it will not countenance them in any attempt knowingly 
to harbor offenders against the laws from the pursuit of the legitimate 
agents of justice. 

Asylum to officers of established government. — In 1894 
certain refugees were received upon the Bennington while 
that vessel of the United States Navy was at La Liber- 
tad in Salvador. These refugees were officers of the 
established government which the United States had 
recognized and when received were fleeing from the rev- 
olutionists. Of this event President Cleveland, in his 
message of December 3, 1894, says: 

The Government of Salvador having been overthrown by an abrupt 
popular outbreak, certain of its military and civil officers, while hotly pur- 
sued by infuriated insurgents, sought refuge on board the United States war- 
ship Bennington, then lying in a Salvadorean port. Although the practice 
of asylum is not favored by this Government, yet in view of the imminent 
peril which threatened the fugitives, and solely from considerations of 
humanity, they were afforded shelter by our naval commander, and when 
afterwards demanded under our treaty of extradition with Salvador for 
trial on charges of murder, arson, and robbery, I directed that such of them 
a- had not voluntarily left the ship be conveyed to one of our nearest porta 
where a hearing could be had before a judicial officer in compliance with the 
terms of the treaty. 

From this passage of the President's message, and from 
the correspondence bearing upon the event, it is evident 


that the affair was regarded as one of granting temporary- 
shelter to those who were pursued by an irresponsible 
body of troops. In other cases the United States has 
made a distinction between the granting of temporary- 
shelter to those in imminent danger and the granting 
of asylum as a deliberate act. While the first is some- 
times allowable, the latter has been uniformly dis- 
countenanced. It has also been admitted in practice 
that somewhat more of favor may properly be extended 
to officials of the established government than to parties 
in opposition to it. 

General consideration of the Situation. — In the case as 
presented for solution, the troops opposing the established 
government have received asylum in the United States 
legation, and from fear lest there may be bloodshed the 
minister of the United States requests the United States 
commander to receive the refugees on board his vessel. 
Presuming that there would be no difficulty in bring- 
ing the refugees to the vessel, which would doubtless 
ne contrary to the fact, should he agree to receive the 
refugees? Of course, the commander would have no 
right to take any steps to bring the insurgent troops on 
board his ship or to secure their safety within the juris- 
diction of State X while they are passing from the lega- 
tion to the vessel, even if he should grant the requested 
asylum. The commander could, however, land forces 
for the protection of American interests. If the legation 
of the United States is in danger, the landing of forces for 
its protection is legitimate and such action is not uncom- 
mon. No violation of the territory of State X by landing 
a guard to escort the troops of the insurgent party could 
be held to be a protection of United States interests 
without the special orders of the Government. 

The commander would be justified in affording pro- 
tection to the legation in case of danger to it or offense 
against its inviolability. 

The commander would not assume to judge of the pro- 
priety or impropriety of the action of the United States 
minister. Nor should he share the responsibility of the 
minister. The fact that the minister has received these 

18239—05 3 


refugees does not justify the commander in receiving 
them even upon the minister's request. The position of 
the Government has been set forth by Secretary Hay, in 
1899, when speaking of shelter, "certain limitations to 
such grant are recognized. It should not, in any case, 
take the form of a direct or indirect intervention in the 
internecine conflicts of a foreign country, with a view to 
the assistance of any of the contending factions, whether 
acting as insurgents or as representing the titular 
government. ' ' 

Conclusion. — Considering the attitude of the Govern- 
ment, the policy toward the limitation of asylum, the 
fact that the minister may call upon the commander to 
protect the inviolability of the legation, the commander 
should reply that he has no authority to promise to 
receive any persons as refugees, and that the Regulations 
of the service state that even in the waters of countries 
where frequent insurrections occur, " officers should refuse 
all applications for asjdum except when required by the 
interests of humantiy in extreme and exceptional cases? 
such as the pursuit of a refugee by a mob." Under these 
circumstances, when the pursuit is by the regular troops, 
the commander would not feel justified in interfering. 
Should these persons, however, appear at the side of his 
vessel seeking shelter under exceptional circumstances, 
he would be forced to decide at the time upon the pro- 
priety of receiving them. 

Situation III, (b). 

There is an insurrection in State X. 

(b) The insurgents seize the Robin, a United States 
merchant vessel in the harbor, and promising to recom- 
pense the owners sail away with the vessel. The owners- 
request the commander of the United States war vessel 
to recover the Robin in case he meets the vessel. The 
commander meets the Robin on the high sea. 

What, if anything, should the commander do? 


The commander of the United States war vessel is justi- 
fied in using such force as is necessary to recover the 
vessel which has been seized by the insurgents. 



Insurgents as pirates. — It has been maintained often 
that insurgents committing an act similar to the one 
above mentioned are to be treated as pirates. 

The statement of the Situation, however, admits the 
existence of an insurrection which is regarded as ll a form 
of struggle, varying according to circumstances, but 
usually an armed struggle between two organized groups 
or parties within a state for public political ends." 
(Insurgency, Lectures Naval War College, 1900, p. 3.) 

In many cases also the parent state may declare the 
insurgents to be pirates. This matter was very fully 
considered by the United States, in 1885, in consequence 
of the insurrection in Colombia at that time, when the 
President of the United States of Colombia declared cer- 
tain vessels ' ' occupied by the rebels to be pirates ' ' and 
to be " beyond the pale of international law." 

In discussing the treatment of these vessels, Mr. 
Wharton, solicitor for the Department of State, gave an 
opinion which, since 1885, has been several times affirmed, 
as follows : 

The Government of the United States can not regard as piratical vessels 
manned by parties in arms against the Government of the United States of 
Colombia, when such vessels are passing to and from ports held by insur- 
gents, or even when attacking ports in the possession of the National Govern- 
ment. In the late civil war the United States, at an early period of the strug- 
gle, surrendered the position that those manning the Confederate cruisers 
were pirates under international law. The United States of Colombia can 
not, sooner or later, do otherwise than accept the same view. But, how- 
ever this may be, no neutral power can acquiesce in the position now taken 
by the Colombian Government. Whatever may be the demerits of the 
vessels in the power of the insurgents, or whatever may be the status of those 
manning them under the municipal law of Colombia, if they be brought by 
the act of the National Government within the operation of that law, there 
can be no question that such vessels, when engaged as above stated, are not, 
by law of nations, pirates; nor can they be regarded as pirates by the United 
States. (U. S. Foreign Relations, 1885, p. 212. ) 

It is not denied, of course, that a local government may 
define what actions and what persons it will regard as 
piratical, but such local definition has significance only 
for the state making the definition. Indeed the United 
States Constitution specifically gives to Congress the 


right "to define and punish piracies and felonies com- 
mitted, on the high seas and offences against the laws of 
nations. ?; The definition of piracy in the international 
sense is, however, not dependent on these municipal 

Policy oj the United States. — As President Cleveland 
said, in his Message of December 8, 1885: "A question of 
much importance was presented by decrees of the Colom- 
bian Government, proclaiming the closure of certain 
ports then in the hands of insurgents, and declaring ves- 
sels held by the revolutionists to be piratical and liable to 
capture by any power. To neither of these propositions 
could the United States assent. An effective closure of 
ports not in the possession of the government, but held 
by hostile partisans, could not be recognized; neither 
could the vessels of insurgents against the legitimate 
sovereignty be deemed Jiostes humani generis within the 
precepts of international law, whatever might be the 
definition and penalty of their acts under the municipal 
law of the state against whose authority they were in 
revolt. The denial by this Government of the Colombian 
propositions did not, however, imply the admission of a 
belligerent status on the part of the insurgents. ' ' 

The declaration by a state that a certain vessel or cer- 
tain vessels are piratical does not make them such accord- 
ing to international law, nor does it give a foreign state 
a right to treat them as piratical. Mr. Bayard gave the 
opinion of the State Department, in 1885: 

The principle upon which I based my note of April 24 was, generally, 
that there can not be paper piracy with international effects and obliga- 
tions any more than there can be a paper blockade of effective character. 
In the one case, as in the other, no force or effect can be communicated by 
a municipal decree which is not inherent in the case itself, and I felt con- 
strained to announce to you that this Government could not deem itself 
bound in any manner by such a decree, either as entailing any interna- 
tional obligation or as conferring upon it any derived jurisdiction in the 
premises. The position seemed so self-evident and is so abundantly sup- 
ported by authority that I deemed it quite unnecessary to enter into argu- 
ment or collation of precedents to sustain the simple announcement. 

It would seem, however, that you have misunderstood that announce- 
ment, now seek to controvert on the assumption that it recognizes 
the vessels mentioned in the Colombian decree as legitimate belligerents, 
thereby divesting them of whatever inherent piratical character they may 



possess. Your argument, and the pre&edent of the Magellan pirates ad- 
duced by you, aim to show that vessels of this character, even though 
ostensibly in the service of a hostile insurrection, may be tainted with 
piracy to a degree to bring them within the jurisdiction of a foreign state 
whose forces may have captured them on the high seas. 

This position I am not disposed to deny, but I then did feel bound to 
deny, and do so still, that a municipal decree of a sovereign can communi- 
cate to a single vessel, or in comprehensive terms to a class of vessels, a 
character of piracy which they may not already possess under the circum- 
stances surrounding each particular vessel, or that a foreign sovereign can 
derive or exercise any power, obligation, or jurisdiction in virtue of such 
a municipal decree which it does not already possess in the nature of the 
case under the law of nations. Were any foreign government to exercise 
such right or jurisdiction in the case of a vessel found committing acts in 
themselves piratical, a decree of this character could only, by the widest 
stretch, be deemed an acquiescence in and voluntary confirmation of the 
power and right so exercised by the law of nations. It could not be held 
to confer the right to capture and judge an actual pirate any more than, 
assuming the contrary position by way of hypothesis, it could deny or 
assume to annul that right in a given case. (U. S. Foreign Relations, 
1885, p. 273.) 

The declaration by a foreign state that certain vessels 
in revolt against the established government are pirat- 
ical is often practically an admission of their insurgency 
and of the fact that hostilities exist with the faction in 
control of the ships, for piracy in the international law 
sense is determined by the intent of the act and not by 
domestic decree. 

Attitude of Great Britain. — The Huascar, a Peruvian 
ship of war, was seized by its crew in a revolt in 1877. 
The Government of Peru declined to be responsible for 
the acts of the rebels. The Huascar boarded British ves- 
sels, seized coal, and took off passengers. a On the ques- 
tion being brought before the House of Commons, the 
attorney-general expressed his opinion that the Huascar 
was not a belligerent, but a rover committing depreda- 
tions which made her an enemy of her Britannic Majesty, 
and therefore it could not be disputed that the admiral 
could wage war upon her. If she were a belligerent, or 
the vessel of a belligerent power, to which the representa- 
tion of the British Government was under an obligation 
to extend belligerent rights, the proceedings of the admiral 
might be open to censure. But to make out that she 
was a vessel belonging to a belligerent power there must 


be a rebellion; the rebels also must have established 
something like a government, to do certain acts upon the 
high seas against neutral ships. If a cruiser did com- 
mit acts of depredation without authority, the neutral 
states would demand satisfaction. If the Huascar was 
a belligerent, she would be responsible. In strictness the 
crew of the Huascar were pirates and might have been 
treated as such; but it was one thing to say that, accord- 
ing to the strict letter of the law, people have been guilty 
of acts of piracy and another to advise that they should 
be tried for their lives and hanged at Newgate. The 
Huascar was called upon to surrender, and she refused. 
The admiral took steps accordingly to make her sur- 
render. " (Halleck, Baker's ed. International Law, Vol. 
I, p. 449.) 

• Piracy according to international law. — Piracy in the 
international sense is not a political act, but an act imply- 
ing animus furandi, an act entered upon in a spirit of 
robbery or marked violence. It is not aimed against 
any particular state or the citizens of any particular state. 
Lawrence gives, among the marks of a piratical act, that 
it be "an act of violence adequate in degree;" " an act 
done outside the territorial jurisdiction ot any civilized 
state;" and "an act the perpetrators of which are desti- 
tute of authorization from any recognized political com- 
munity;" or, as Lawrence says, in summarizing, "An act 
to be piratical must be of adequate violence; it must be 
committed outside the jurisdiction of a civilized State; 
and it must possess no national authorization." (Inter- 
national Law, section 122, p. 210.) 

Application to the Situation. — It is evident that it is not 
the policy of the United States to regard insurgent ves- 
sels as pirates, and hence this vessel while seizing a vessel 
within the harbor of State X can not be considered as a 
pirate from the point of view of international law. 

The act is committed within the jurisdiction of State 
X and in derogation of the sovereignty of State X. It 
is unquestionably a violation of the laws of State X, and 
for the act State X may prescribe the punishment. 

As the act is not piracy in fact or in intent, the United 


States commander should not, if he overtakes the vessel 
on the high seas, treat it as piratical. 

By the statement of the situation, the commander of 
the United States war vessel does meet the seized vessel, 
the Robin, on the high seas. 

He ma}~ not treat the case as one of piracy, but it cer- 
tainly is an offense which comes within his jurisdiction. 
This is a case of a merchant vessel which needs his pro- 
tection and the regulation of the service would apply. 

U. S. Navy Regulations, 1900, 309, prescribe that, 

So far as lies within their power, commanders-in-chief and captains of 
ships shall protect all merchant vessels of the United States in lawful occu- 
pations and advance the commercial interests of this country, always acting 
in accordance with international law and treaty obligations. 

The Robin has been seized within the jurisdiction of 
the State X and is now upon the high seas. It is evident 
that State X is not in full control of the port in which 
the Robin was seized. From the nature of the case, also, 
the insurgents who seized the Robin, while not pirates, 
are not a responsible body and can not be dealt with as 
.such by the United States. As they are not belligerents 
the seizure of the Robin can not be permitted under the 
right of angary. Nor does the promise to make compen- 
sation to the owners in any way change the case, as the 
insurgents who seized the Robin are not a responsible 
body at the time and their future responsibility is uncer- 
tain. That the seizure is not with the approval of the 
owners is evident from the request of the owners that 
the vessel be recovered by the United States war vessel. 
2" In 1885, in Colombia, certain vessels belonging to 
neutrals were taken by insurgents in a manner somewhat 
similar to that in the case of the Robin. At this time 
Mr. Wharton /Solicitor for the Department of State, gave 
his opinion as follows : — - - 

~\Vhen vessels belonging to citizens of the United States have been seized 
and are 'now navigated on^the high seas by persons not representing any 
government or belligerent power recognized by the United States, such 
vessels may be captured and rescued by their owners, or by United States 
cruisers acting for such owners : and all force which is necessary for such 
purpose may be used to make the capture effectual. (U. S. Foreign Rela- 
tions, 1885, p. 212.) 


From the above, which is an accepted precedent, it is 
evident that the commander of the United States war 
vessel would be justified in seizing the United States 
merchant vessel which the insurgents had taken. 

Conclusion. — The commander of the cruiser of the 
United States is justified in making a capture of the 
Robin. What disposition shall he make of the captured 
vessel ? While the naval officer is justified in making the 
capture, he has not authority, except in extreme in- 
stances, to dispose of or determine the fate of a captured 
vessel. That authority belongs to another branch of the 
Government. He should therefore send in the captured 
vessel, if possible, to a port of his own country with a 
report of the case. If distance or other circumstances 
prevent such action, he should take the vessel under his 
authority to some port near by and obtain instructions 
from his home Government as to the further disposition 
of the vessel. 

The question of damages from State X on account of 
seizure of the Robin within that State's jurisdiction is a 
matter for diplomatic negotiation. 

Situation III, (c) . 

There is an insurrection in State X. 

(c) State X charters a United States merchant vessel to 
transport troops to the seat of insurrection. When the 
vessel is about to land these troops it is captured by the 
insurgents. The captain of the United States merchant 
vessel appeals for assistance to the commander ot a United 
States war vessel near by. 

(1) What action, if any, should he take? 

(2) How would he act if the troops of State X had been 
landed before the capture of the vessel? 


(1) The commander of the United States war vessel 
should reply that "while the United States would not 
interfere to prevent an American vessel from voluntarily 
carrying arms and troops in the service of a government 
trying to put down an insurrection, it would leave the 
vessel and its crews so voluntarily entering into such 
service to the consequences of establishing such a rela- 


(2) Provided the merchant vessel has fulfilled its char- 
ter contract and is no longer in the service of State X after 
landing the troops, the commander of the United States 
war vessel should extend to the merchant vessel full pro- 


Nature of the relations.— -The fact of the insurrection is 
admitted. State X enters into a contract with the mer- 
chant vessel of the United States to transport troops to 
the seat of the insurrection. 

As there is no belligerency from the point of view of 
international law, this becomes a simple commercial con- 
tract in which certain service is rendered under a certain 
agreement. The nature of the service is a question of 

It has been held by the Supreme Court of the United 
States that a recognition of belligerency is not necessary 
in order to bring into operation the neutrality laws of the 
United States. (166 U. S., 49.) 

"It may be said to be established that the parties to 
a conflict that has attained the proportion of an insur- 
rection shall observe, as far as possible, the rules of 
civilized warfare." (Insurgency, Lectures, Naval War 
College, 1900, p. 13.) 

It is generally admitted at the present time that insur- 
gents are not criminals when pursuing public political 
ends, and also that insurgents are free to carry on legiti- 
mate hostilities, though it is maintained that the conduct 
of these hostilities should not unduly interfere with neu- 
tral commerce. Admiral Benham, at the time of the 
Brazilian revolt of 1893-94, maintained that while neu- 
tral commerce was liable to interruption during the actual 
continuance of active hostile operations in time of an 
insurrection, at other times ordinary commerce should 
not be interrupted because of such internal disturbances. 

In case of State X there is no belligerency in the sense 
in which the word is used in international law. There is, 
however, an insurrection, which is held to bring into ope- 
ration certain of the laws applying to a state of belliger- 
ency so far as the parties to the struggle are concerned. 
Just how far third states and the citizens of other states 


are affected by the existence of insurrection in a given 
state is not yet determined. 

Blue-fields, 1894- — An instance somewhat similar to the 
one under consideration occurred in 1894, at the time of 
the Bluefields insurrection. The conditions, as shown 
from the official correspondence, were as follows: 

Mr. Baker to Mr. Gresham. 

Legation of the United States, 
Managua, August 8, 1894 — (Received September 4). 

Sir : On the evening of August 2 Mr. Gustavo Guzman came to this lega- 
tion bearing, as he informed me, a verbal message from the President, to the 
following effect : 

First. That this Government had sent a large number of troops to San 
Juan del Norte, where they had just arrived, on their way to Bluefields. 

Second. That this Government had chartered the steamboat Yulu, a boat 
owned by the Emory Company of Boston, flying the United States flag, to 
transport these troops from San Juan del Norte to Bluefields. 

Third. That now the captain and crew of the Yulu, all Americans, refuse 
to carry the soldiers, for the reason that Commander O'Neil, of the U. S. S. 
Marblehead, had issued a proclamation forbidding vessels under the flag of 
the United States from "carrying bodies of armed men or military supplies " 
for either "party" to the controversy in the Mosquito territory. 

Fourth. The President, therefore, requested that I, as United States min- 
ister, issue an order to the captian and crew of the steamer Yulu, assuring 
them that they run no risk in disobeying the warning of Commander O'Neil. 

I could not believe it to be my duty to comply with this request ; but, 
at the suggestion of Mr. Guzman, I gave him the accompanying tele- 
gram, marked "Inclosure No. 1," which he had liberty to send if he so 
desired. Inclosure No. 2 is a copy of the proclamation of Commander 
O'Neil referred to. 

I have, etc., 

Lewis Baker. 


Mr. Baker to Commander O'Neil. 

Legation of the United States, 

Nicaragua, Costa Rica, and Salvador, 

Managua, August 2, 1894- 
Commander O'Neil, 

U. S. S. Marblehead, Bluefields: . 

The Nicaraguan Government had chartered" as I learn, the steamer Yulu r 

belonging to a company of Americans, to carry troops from Grey Town to 

Bluefields. The President desires to know if this is contrary to your order 

commanding the neutrality of American citizens. Please answer, in care of 

Consul Braida, Grey Town. 

Lewis Baker, 

United States Minister. 
(Foreign Relations U. S., 1894, p. 321.) 



U. S. S. Marblehead, 

Off Bluefields, Nicaragua, July 14, 1894. 
To the owners, agents, and captains of vessels under the flag of the United 

States trading in these waters: 

In view "of the fact that there is in effect a revolution going on in the Mos- 
quito Reserve between the chief of the said reserve and his followers and 
the provisional council, which in a measure through its president represents, 
or assumes to represent, the Government of Nicaragua, these parties being 
in hostile attitude to each other, and the former being at present in posses- 
sion at Bluefields, you are hereby cautioned and counseled not to interfere 
with nor take part in the affairs of either faction by permitting vessels under 
your charge to engage in any military operations, that is, not to carry bodies 
of armed men or military supplies, knowing them to be such, for either 
party, nor to assist in any hostile demonstration; and should either party 
attempt to coerce you to do so, or interfere with you in the peaceful pursu- 
ance of your legitimate business, you are advised to utter a vigorous protest, 
to show this notice, and to communicate the facts of the case to me. 

Charles O'Neil, 
Commander, United States Navy. 

(Foreign Relations, U. S., 1894, Appendix I, p. 321.) 

It will be observed that Commander O'Neil had not, as 
was intimated by the Nicaraguan representative, for- 
bidden vessels under the United States flag "to carry 
bodies of armed men or military supplies, knowing them 
to be such, for either party, nor to assist in any hostile 
demonstration." What he actually did was to caution 
and counsel " owners, agents, and captains of vessels under 
the flag ol the United States ' ' against such action. Subse- 
quent events showed the wisdom of the notice issued as 
cautionary by Commander O'Neil. The sworn statement 
of the purser of the steamship Yulu, before Consular Agent 
Seat, is as follows: 

Affidavit of N. L. Latson. 

United States Consular Agency, 

Bluefields, Nicaragua, September 22, 1894- 
This day, before me, the undersigned authority, personally came and 
appeared Norman L. Latson, to me known, and on his oath declares that 
heretofore, to wit, on or about the 3d day of August, 1894, affiant was purser 
on board the American steamship Yulu, which arrived off Bluefields on the 
3d day of August, 1894, having on board 500 or thereabouts Nicaraguan 
soldiers and officials, among whom were Mr. Jose Madriz, Nicaraguan min- 
ister of foreign affairs; General Portocarrero, judge-advocate, and Carlos 


Lacayo, ex-commissioner of the Mosquito Reserve. Affiant further states 
that upon approaching the U. S. S. Columbia, which was at anchor off Blue- 
fields, the captain of the Yulu signaled that he had on board the above- 
mentioned troops and soldiers under protest. 

He was thereupon ordered by the U. S. S. Columbia to anchor alongside, 
and was shortly afterwards boarded by Lieut. O. W. Lowry, of said vessel. 
Lieutenant Lowry refused to allow the captain of the steamship Yulu to 
disembark the Nicaraguan troops aboard until he had communicated with 
Captain Sumner, of the steamship Columbia, who was in the town of Blue- 
fields. He directed Captain Johnson to take the steamship Yulu into the 
harbor of Bluefields and to come to an anchor there. Lieutenant Lowry 
also placed aboard the steamship Yulu a boat's crew of 11 men, in charge of 
Ensign Kuenzli, who was to prevent the disembarkation of the Nicaraguan 
troops until the return of Lieutenant Lowry, who went into the town in the 
steam launch of the Columbia to receive instructions from Captain Sumner. 
Lieutenant Lowry offered to convey Minister Madriz and any of his officers 
into the town in his steam launch, but the proffered offer was refused, 
whereupon Lieutenant Lowry stated that he would return with Captain 
Sumner's answer in the shortest possible time, probably two hours. 

Affiant further states that the Nicaraguan officials were very indignant 
at the refusal to allow them to disembark the troops at once, and indulged 
in strong language against the action of the United States. As time passed 
the excitement and indignation among them began visibly to increase. The 
water tanks of the steamship Yulu had been left open by the Nicaraguan 
soldiers during the night and all the fresh water allowed to escape, and the 
aforesaid soldiers were clamoring for water during their detention. Finally, 
some of the officials made signals to the Government wharf, about 50 yards 
away, at which was stationed a force of Nicaraguan soldiers, and two boats 
were sent out to the steamship Yulu in response. Affiant further states that 
in the wheelhouse of the steamship Yulu were Ensign Kuenzli with two men, 
the remainder at the time of the occurrence being disposed about the roof 
of the upper deck. There were also present Carlos Lacayo, Ramon Enri- 
quez, a merchant from Grey Town, Nicaragua, and the affiant, Norman L., 
Latson. The latter, leaning out of the window of the wheelhouse, heard 
Minister Madriz, who was accompanied by Judge-Advocate Portocarrero, 
order Captain Johnson, of the steamship Yulu, to take his vessel in to the 
Government wharf at once and discharge the troops. This Captain Johnson 
refused to do, stating that his vessel was in control of the officer from the 
U. S. S. Columbia, and therefore not in his power to obey such a demand. 

Affiant further states that thereupon Judge-Advocate Portocarrero, 
closely followed by Minister Madriz, rushed into the wheelhouse of the 
steamship Yulu. They were both white with anger, and Portocarrero had 
m his right hand, with his finger on the spring, a clasp knife with a blade 
about 8 inches long. Ensign Kuenzli sat on a portion of the steering gear 
of the steamship Yulu, within a few feet of Portocarrero, and with his back 
toward him. He was reading, but remarked later that he was aware some- 
thing serious was impending. The two other men from the Columbia were 
on the opposite side of the wheelhouse, looking out of a window, and with 
their backs also turned to the Nicaraguan officials. Most of the rifles 


belonging to the man-of-war's men were stacked in this wheelhouse, and 
the Nicaraguans were aware that it would be almost impossible for the men 
who were on the roof to reach them in case of sudden attack. There 
were at least 100 Nicaraguans on the upper deck of the steamship Yulu, 
and completely surrounding the wheelhouse. 

When Madriz and Portocarrero rushed into the wheelhouse they gathered 
around the two doors, which open onto the deck, and, with fixed bayonets 
and drawn swords, listened to what transpired. Portocarrero commenced 
a violent and insulting tirade against the United States, claiming, among 
other things, ,that her action in refusing to allow Nicaraguan troops to 
disembark was cowardly and the tyrannical oppression of a small and 
defenseless country by a large and powerful one. Madriz agreed with him, 
and stated that he considered this action an insult to Nicaragua through 
him; he further said that they had agreed to wait two hours for an answer 
and that nearly three had elapsed. Portocarrero then said, turning to 
Madriz: "Let us make them take the ship to the wharf and disembark the 
troops." Affiant then said: "You are making a serious mistake, General 
Portocarrero, and do not understand the circumstances of this detention." 

Portocarrero appeared to lose control of himself, and being seconded by 
some encouraging exclamations from the crowd around the doors, he raised 
his knife and, pointing toward the young officer, said to Madriz: "You give 
the command and I will throw myself upon him, and we will take the ship in 
to the wharf against any resistance on their part." At this instant, and 
before Minister Madriz could reply, Captain Johnson, of the steamship Yulu, 
stepped into the room and said that he saw smoke across the lagoon, and 
believed that the launch was returning. Madriz then turned to Porto- 
carrero, who still stood, knife in hand, and said: "We will wait and see 
whether it is the launch; we will give them half an hour more, and if it is not, 
we will go in anyhow." Both Lacayo and Enriquez endeavored to dissuade 
Portocarrero from the position he had taken, but they were not listened to. 
The smoke mentioned by Captain Johnson proved to be from the steam 
launch of the Columbia, and in due time Lieutenant Lowry reached the 
steamship Yulu with instructions from Captain Sumner to permit the dis- 
embarkation of the Nicaraguan troops. 

Affiant further states that from his knowledge of the mood and temper of 
the Nicaraguan officials, and from the threats he personally heard expressed, 
he deposes and says that he believes a disaster and massacre aboard the 
steamship Yulu was only averted by the timely sighting of the Columbia's 
steam launch. 

Affiant further states that he is a native of the United States, born in the 
State of New York, and for five years a resident of Nicaragua. He also 
states that he thoroughly understands Spanish, in which language the above 
remarks were made. 

Norman L. Latson. 

Sworn to and subscribed before me this September 22, A. D. 1894. 

B. B. Seat, 
United States Consular Agent. 
(Foreign Relations, U. S., 1894, Appendix I, p. 344.) 


From this statement it is seen that the troops were 
allowed to disembark and the captain was permitted to 
depart with his vessel. 

This precedent would seem to indicate that the action 
of the commander might be limited to the issuing of the 
notice of caution and council so far as the transportation 
and landing of the troops may enter into the case. 

Effect of charter. — In the situation under consideration, 
however, as the troops are about to land, the merchant 
vessel chartered by State X is captured by the insurgents 
and the captain appeals to the commander of the United 
States war vessel for assistance. There is no war in the 
full international sense in State X, yet as was said in the 
case of The Three Friends (166 U. S., p. 63), there is a 
"distinction between recognition of belligerency and 
recognition of a condition of political revolt, between 
recognition of the existence of war in a material sense and 
of war in a legal sense." The court further held that the 
neutrality laws of the United States extended in this time 
of war in a material sense to prohibition of certain acts 
forbidden to a neutral in the time of war in a legal sense. 

It is affirmed that the merchant vessel here considered 
Ls a United States vessel and is consequently entitled to 
proper protection as such. In general the character of a 
merchant vessel is determined by its flag and its papers. 
In this case there is no intimation that the papers of the 
United States merchant vessel are not correct in all 
respects. The one fact is that the merchant vessel is 
engaged under contract with State X in transporting 
troops to the seat of insurrection when she is seized as the 
troops are about to land. 

The vessel has not completed her contract with State X. 
The vessel is not captured on the high seas. On this last 
account the United States war vessel would ordinarily 
hesitate to exercise jurisdiction because within the three- 
mile limit the local jurisdiction is supposed to prevail. 
Under certain circumstances when a state is disturbed 
by domestic violence a commander would be justified in 
interfering for the protection of the interests and per- 
sons of citizens of his own state. 

This vessel, by accepting the charter from State X foi 


the transportation of troops to that extent, engages in the 
military expedition against the insurgents and assumes 
the consequent risks. Halleck (International Law, 
Baker's ed., I, p. 438), says: "The national character of 
ships is, as a general rule/ determined by that of their 
owners. But, as hereafter shown, this rule is subject to 
many exceptions, a hostile character being not infre- 
quently impressed upon the vessel while its owners are 
neutrals or friends. Thus, a hostile flag and 'pass, the 
carrying of military persons or dispatches of an enemy, 
trading between enemy's ports, etc., will give to a vessel 
a hostile character, no matter what may be that of its 
owners." And again (Vol. II, p. 97) "So, a ship belong- 
ing to a neutral owner may acquire a hostile character 
from the trade in which she engages or some particular 
act which she may do." 

In speaking of several cases where neutral vessels enter 
belligerent service in time of war Dana, in a note to 
Wheaton's International Law (note 228, p. 643), says: 

If a vessel is in the actual service of the enemy as a transport, she is to be 
condemned. In such case it is immaterial whether the enemy has got her 
into his service by voluntary contract, or by force or fraud. It is also, in 
such case, immaterial what is the number of the persons carried, or the 
quantity or character of the cargo; and, as to despatches, the court need 
not speculate upon their immediate military importance. It is also unim- 
portant whether the contract, if there be one, is a regular letting to hire, 
giving the possession and temporary ownership to the enemy, or a simple 
contract of affreightment. The truth is, if the vessel is herself under the 
control and management of the hostile government, so as to make that 
government the owner pro tempore, the true ground of condemnation should 
be as enemy's property. 

The quotations apply to a state of war. 

Mr. Bayard, in a letter of December 3, 1886, says 

"If in that (a foreign) country," said Mr. Webster, "he (a citizen of the 
United States) engages in trade or business he is considered by the law of 
nations as a merchant of that country;" and in this and other cases ruled in 
this Department on this principle, it was held that citizens of the United 
States who engage in insurrectionary movements in Cuba thereby expose 
their property to seizure by Cuban authorities, and had no claim on this 
Government to secure indemnity for them from Spain. Nor can Spanish 
subjects (under similar circumstances) make claim against the United 
States for losses incurred by them through confiscation of their goods in the 
late civil war, such confiscation being in conformity with the laws of war." 
(Ill Wharton, International Law Digest, p. 968.) 


It has been affirmed that even "by voluntarily remain- 
ing in a country in a state of civil war they (subjects of 
foreign powers) must be held to have been willing to 
accept the risks as well as the advantages of that domicil. ,, 
(Ibid, II, p. 578.) 

From such statements it is evident that those who 
voluntarily come within the range of insurgent military 
action must assume the responsibility thus incurred. 

The United States merchant vessel voluntarily accepted 
a charter which in its purpose was to bring the vessel as 
a part of an actual military expedition within the field of 
what the Supreme Court has called "war in a material 
sense;" and, more than that, the vessel has distinctly 
identified itself with the military forces of State X to the 
extent of transporting its troops to the seat of hostilities. 

Under these conditions the vessel is wholly within the 
jurisdiction of State X for its charter purpose and must 
look to State X for protection and assistance. 

Opinion of Department of State: — The Government of 
the United States has set forth its position in the corre- 
spondence as printed in the Foreign Relations for 1897 
(p. 331). This position will be seen to accord with the 
general line of precedent and argument which has pre- 
vailed in the United States. 


Mr. Rodriguez to Mr. Sherman. 

Legation of the Greater Republic of Central America, 

Washington, April 17, 1897. 
Sir: Conformably to our conversation of yesterday, I have the honor to 
address this communication to your excellency. 

My Government desires to transport troops and implements of war from 
a port in Honduras, or from the Confederation, to any port in the same 
State, on the Atlantic or Pacific, with the object of reestablishing order 
along the first of the above-named coasts; and in the event of being able 
to charter, for this purpose, American vessels, it trusts the consuls of the 
United States at Ceiba and Trujillo, or at any other place along the said 
coasts, will put no obstacles in the way. My Government solicits this 
friendly office of your excellency without prejudice to the right which it 
may have in accordance with international law. 

I reiterate, etc., J. D. Rodriguez. 


Mr. Sherman to Mr. Rodriguez. 

Department of State, 

Washington, April 20, 1897. 

Sir: I have the honor to acknowledge the receipt of your note of the 
17th instant, in which, referring to our conversation of the 16th, you state 
the desire of your Government to transport troops and munitions in the 
same State on the Atlantic or the Pacific, with the object of reestablishing 
order along the Atlantic coast, and that in the event of your Government 
being able to charter American vessels for this purpose it trusts that the 
consuls of the United States at Ceiba and Trujillo, or at any other place 
along the said coast, will put no obstacles in the way. 

If, as would appear, the proposed chartering of American vessels by your 
Government contemplates a regular contract with the owners or agents 
ol such vessels, not compulsory but voluntary on their part, it is not per- 
ceived how the consuls of the United States could interpose any valid 
objections to a legitimate transaction which the representatives of the 
American owners may be legally competent to effect. 

Copy of this correspondence will,, however, be sent to the United States 
minister to Guatemala and Honduras and to the consular officers in the 
latter country for their information. / 

Accept, etc., John Sherman. 

Mr. Sherman to Mr. Coxe. 

Department of State, 

Washington, April 21, 1897. 

Shi: I inclose herewith for your information copy of notes from and to 
Senor J. D. Rodriguez, the minister of the Greater Republic of Central 
America at this capital, in regard to the desire of his Government to char- 
ter American vessels for the purpose of transporting troops and munitions 
of war with object of reestabhshing order along the Atlantic coast. 

You will observe the Department's reply that if the proposed charter- 
ing of American vessels by his Government contemplates a regular contract 
with owners or agents of such vessels, not compulsory but voluntary on 
their part, it can not be perceived how the consuls of the United States 
could interpose any objections to a legitimate transaction which the rep- 
resentatives of the American owners may be legally competent to effect. 

If, however, there should be any appearance of coercion on the part of 
the employing Government, the consul's intervention would be justified. 
The owners of the vessels should also understand that they can not expect 
the United States to intervene in their behalf should the employing Gov- 
ernment fail to pay them for their services, for while the United States 
would not interfere to prevent an American vessel from voluntarily carry- 
ing arms and troops in the service of a Government trying to put down 
an insurrection, it would leave the vessel and its crews so voluntarily enter- 
ing into such service to the consequences of establishing such a relation. 

18239—05 4 


Should a seaman employed for other services desire to be discharged, he 
ought not to be compelled to serve in the transportation of arms and 

Respectfully, yours, John Sherman. 

(Foreign Relations U. S., 1897, p. 331.) 

Conclusion — (1). The commander of the United States 
war vessel should therefore reply that "while the United 
States would not interfere to prevent an American ves- 
sel from voluntarily carrying arms and troops in the 
service of a government trying to put down an insurrec- 
tion, it would leave the vessel and its crews so volun- 
tary entering into such service to the consequences of 
establishing such a relation." 

The issue of any such notice of caution and counsel as 
that issued by Commander O'Neil is not mandatory, 
though in may be, on occasion, advantageous. 

(2) In the situation in which the troops had already 
been landed before the capture of the merchant vessel 
the relations may be materially changed, provided the 
charter provision extend merely to the transportation of 
the troops to the seat of the insurrection, and provided 
that the merchant vessel has met the provisions of the 
contract and is no longer connected with the expedition. 

As this is not war in "the legal sense," but only "in 
the material sense," the vessel has simply performed a 
mercantile act for the established Government, and upon 
its completion the vessel resumes its status as a merchant 
vessel of the United States. 

The commander should therefore extend to the vessel 
the ordinary protection and would not permit capture of 
the vessel no longer concerned in the insurrection, or 
if the vessel had been captured after fulfilling its contract 
he should demand and secure its immediate release. The 
insurgents are not a responsible body. They have no 
prize courts or other means of enforcing the laws of war. 
They are therefore entitled to use force against neutrals 
only when this is absolutely essential in the actual con-* 
duct of active hostilities. 

Mr. Hay has clearly enunciated the position in a lettei 
to the Secretary of the Navy of November 15, 1902, in 
which he says. 


But in no case would the insurgents be justified in treating as an enemy 
a neutral vessel navigating the internal waters, their only right being, as 
hostiles, to prevent the access of supplies to their domestic enemy. The 
exercise of this power is restricted to the precise end to be accomplished. 
No right of confiscation or destruction of foreign property in such circum- 
stances could well be recognized, and any act of injury so committed 
against foreigners would necessarily be at the risk of the insurgents. The 
question of the nature and mode of the redress which may be open to the 
government of the injured foreigners in such a case hardly comes within 
the purview of your inquiry, but I may refer to the precedents heretofore 
established by this Government in the enunciation of the right to recapture 
American vessels seized by insurgents. 

I have the honor to be, sir, your obedient servant, 

John Hay. 

(International Law Situations, Naval War College, 1902, p. 82.) 

Situation III, (d). 

There is an insurrection in State X. 

(d) Mr. Smith, a citizen of the United States, is impli- 
cated in this insurrection in State X, and is sent out of 
the country. Mr. Smith, as a passenger upon a vessel 
of State Y, subsequently enters a port of State X. While 
upon the vessel he is arrested by the authorities of State 
X. He then appeals to the commander of a United 
States war vessel to obtain his release, stating that the 
action of the authorities of State X was illegal and 

What action, if any, should the commander take? 


The commander could not claim the delivery or release 
of Mr. Smith to him, "but would have to limit his action 
to the exercise of good offices, so far as possible in con- 
junction with" other representatives of the United States 
to secure for Mr. Smith "fair and open process of law, 
with every opportunity for defense, and if convicted, 
leniency of treatment." He should, if possible, warn 
Mr. Smith of the risk he runs in again entering the juris- 
diction of State X. It is a general principle that rep- 
resentatives of the United States in a foreign harbor 
"can neither assist in nor resist the orderly operation of 
the law of the port." 


Questions suggested by the Situation. — Two questions 
naturally arise in connection with this situation, (a) the 
question of asylum for insurrectionists upon merchant 


vessels, and (b) the question of intervention for the pro- 
tection of those involved in insurrection, who, after being 
sent out of the State, return to its jurisdiction upon a 
foreign merchant vessel. 

The statement by Mr. Smith that "The action of the 
authorities of State X was illegal and unjustifiable " 
involves other questions also. 

The general position is expressed by the Department 
of State: 

The instructions to diplomatic officers of the United States provide in 
regard to citizens of the United States that the diplomatic officers should 
countenance and protect "citizens" before the authorities "of the foreign 
country" in all cases in which they may be injured or oppressed, but their 
efforts should not be extended to those who have been willfully guilty 
of an infraction of the local laws. It is their duty to endeavor, on all 
occasions, to maintain and promote all rightful interests and to protect 
all privileges that are provided for by treaty, or are conceded by usage. 
If representations made to the authorities of the countries fail to secure 
proper redress the case should be reported to the Department of State. 

The vessel upon which Mr. Smith is a passenger 
belongs to State Y. The commander of the war vessel 
of the United States has, of course, no jurisdiction over 
this vessel under ordinary circumstances. He might 
at any time use his good offices to prevent, so far as 
possible, injustice to a citizen of the United States. 
After his arrest Mr. Smith is within the jurisdiction of 
State X. The question then becomes one between the 
United States and State X, and if the arrest is illegal 
there may also be a case between State Y and State X. 
Whether Mr. Smith, who has been concerned in stirring 
up opposition against State X, can claim any immunity 
from the fact that he is on a merchant vessel or a pas- 
senger vessel of a foreign state within a port of State X 
is one of the points to be settled. The commander of 
the war vessel would be justified in any case in demand- 
ing that the ordinary procedure for arrest of offenders 
against State X be followed, so far as the exigencies of 
the disturbed condition of State X permitted. Whether 
he could demand more than this and a fair trial for the 
offense committed, involves the matter of asylum for 
political offenders upon private vessels of a foreign 
state in the time of an insurrection within a given state. 


(a) The question of asylum for insurrectionists upon 

merchant vessels. 

The opinions rendered at various times on the sub- 
ject are not entirely in accord. 

The Barrundia case. — The case of General Barrundia 
has been particularly discussed. 

In a long dispatch bearing the date of November 18, 
1890, Mr. Blaine discusses the case of General Barrundia, 
who had been shot while resisting with force arrest on 
board the Pacific mail steamer Acapulco, sailing under 
the American flag and plying between Pacific ports. 
General Barrundia had secured passage for Panama, 
and had embarked at a Mexican port. He was a political 
exile from Guatemala. The captain of the Acapulco 
requested of Mr. Mizner information as to what he should 
do in reply to the Guatemalan demand for the arrest 
of General Barrundia when the Acapulco anchored in a 
Guatemalan port. After a telegram, which the cap- 
tain of the Acapulco did not regard as sufficient, Minister 
Mizner sent to the captain of the Acapulco the following 

Mr. Mizner to Captain Pitts. 

United States Legation, 
Guatemala, August 27, 1890 — 10.30 p. m. 
Sir: If your ship is within 1 league of the territory of Gautemala, and 
you have on board Gen. J. M. Barrundia, it becomes your duty, under 
the laws of nations, to deliver him to the authorities of Gautemala 
upon their demand, allegations having been made to this legation that 
said Barrundia is hostile to and an enenry to this Republic. Guaranties 
have been made to me by this Government that his life shall not be in 
danger, or any other punishment inflicted upon him than for the causes 
stated in the letter of Seiior Anguiano to Consul-General Hosmer, dated 

I have, etc., Lansing B. Mizner, 

United States Minister. 
Capt. W. G. Pitts, 

Commanding Pacific M. S. S. Co.'s Steamship Acapulco. 
(For. Relations of U. S., 1890, p. 85.) 


Commander Reiter had telegraphed to Minister 
Mizner on August 27. 1890, at 8 p. m., as follows: 

San Jose de Guatemala, 

August 27, 1890. 
Mizxer, United States Minister: 

Barrundia expected in steamer. As peace is declared, I suggest that 
you ask Government to permit Thetis to take him to Acapulco, we acknowl- 
edging their municipal rights over steamer. Steamer Acapulco in sight. 


On the following day Commander Reiter sent a letter 
detailing the course of events: 

Commander Reiter to Mr. Mizner. 

U. S. Ranger, August 28, 1890. 

Dear Sir: On receipt of your telegram about 6.30 p. m. yesterday, 
I went ashore and sent one to you at 7 p. m. I requested the commandant 
to postpone action until I received a reply, which he declined to do. I 
waited until after 9 o'clock for a reply from you, and believe that my 
dispatch did not go or that your reply was delayed, as I did not receive 
it until 9.30 this morning. Am sorry my reply was too late. 

The commandant did not take any action last night, but did to-day. 
At about 2.30 we thought we heard firing on board the Acapulco, and a 
few minutes after the Guatemalan flag was hauled down from the fore 
and the United States flag hoisted. I then thought you had come down 
and were on board, but learned later that it was intended to call assistance. 
Lieutenant Bartlett soon came on board from the Acapulco and reported 
that the commandant was on board the Acapulco, and that promiscuous 
firing had been going on, and that the captain desired protection. I 
immediately started, and was followed a few minutes later by Lieutenant 
Harris with an armed guard of marines. On arrival I found that the 
commandant had left with the body of Barrundia, and that all was quiet, 
so I sent Lieutenant Harris back. 

The following is as near as I could learn what occurred: When the com- 
mandant arrived on board he delivered your letter to Captain Pitts, and 
they both went to the captain's room, where it was read. The captain 
then sent the first officer, Mr. Brown, to send all cabin passengers below 
and to warn the steerage passengers to keep forward. The captain and 
commandant then went to Bammdia's room. They stood outside, one 
on each side of the door, while Barrundia was inside smoking a cigarette. 
The captain then told him of the letter, and he could not afford him further 
protection. The commandant then said something to him in Spanish, 
to which Barrundia replied, 'Bueno," when he quickly seized a revolver 
from the upper berth and fired two or three shots out of the door. The 
captain and commandant beat a hasty retreat aft and took refuge in a 
stateroom, followed by Barrundia firing wildly. He passed out to the 
port side of the deck, then forward across to the starboard side through 
social hall, then back through social hall, and turned to go forward on 
the port side, when he fell. 


It was impossible to point out just where the detectives were all the 
time. Some say they were on the starboard side, and first shot and 
wounded Barrundia when he appeared on that side, but the certain result 
was that he died where he fell, pierced by several bullets. He must have 
been terribly excited or scared not to have done any damage to his enemies, 
for he had everything his own way for a few minutes. 

I am sorry you have not been well since your trip to Acajutla, but hope 
you are all right again. 

Commander Stockton returned yesterday. Everything is quiet at La 
Union and Amapala. 
Very sincerely, 

Geo. C. Reiter. 

Hon. L. B. Mizner, 

United States Minister, Guatemala. 

(Foreign Relations U. S., 1890, p. 86.) 

President's statement. — The point of view of the United 
States Government at the time was set forth in the 
President's message of December 1, 1890: 

The killing of General Barrundia on board the Pacific mail steamer 
Aeapulco, while anchored in transit in the port of San Jose de Guatemala, 
demanded careful inquiry. Having failed in a revolutionary attempt 
to invade Guatemala from Mexican territory, General Barrundia took 
passage at Aeapulco for Panama. The consent of the representatives of 
the United States was sought to effect his seizure, first at Champerico, 
where the steamer touched, and afterwards at San Jose. The captain of 
the steamer refused to give up his passenger without a written order 
from the United States minister. The latter furnished the desired letter, 
stipulating, as the condition of his action, that General Barrundia's life 
should be spared, and that he should be tried only for offenses growing 
out of his insurrectionary movements. This letter was produced to the 
captain of the Aeapulco by the military commander at San Jose, as his 
warrant to take the passenger from the steamer. General Barrundia 
resisted capture and was killed. It being evident that the minister, Mr. 
Mizner, had exceeded the bounds of his authority in intervening, in com- 
pliance with the demands of the Guatemalan authorities, to authorize 
and effect, in violation of precedent, the seizure on a vessel of the United 
States of a passenger in transit charged with political offenses, in order 
that he might be tried for such offenses under what was described as martial 
law, I was constrained to disavow Mr. Mizner's act and recall him from 
his post. 

(President's Message, December 1, 1890.) 

Subsequent statements. — The position of the United 
States has been officially stated in certain correspondence 
subsequent to that upon the Barrundia affair. This cor- 
respondence implies that the criticism of Mr. Mizner's 


action in the case of General Barrundia was in conse- 
quence of his assuming to give the Guatemalan author- 
ities an order for the surrender of the accused, (General 
Barrundia) . 


Mr. Huntington to Mr. Gresham. 

Pacific Mail Steamship Company, 
35 Watt Street, New York, December 13, 1893. 

Sm: Referring to our letter of the 11th of November last, we again beg 
to call the attention of the Department to the request contained in the clos- 
ing paragraph, reading: 

"In view of the fact that it is not the first case on record in which the 
commanders of our steamers plying on the Central American coast have 
been called on to deliver to the authorities of the different republics passen- 
gers on their steamers (accused of political offenses against said republics ) , 
and under their charge and protection of our flag, we would esteem it a favor 
\f some definite action should be taken by the Department, by prompt inter- 
vention in this instance, to secure protection in the future for passengers, 
cargo, and mails carried by our steamers, and that a definite policy be out- 
fined by our Government and communicated to this company, in order that 
such instructions may be issued to our commanders as will properly secure 
the protection of our ships and prevent any misunderstanding on the part 
of our officers which might contravene and confuse the wishes of our Gov- 
ernment and involve the Department, as well as this company, in needless 

The Department will readily understand that without some such definite 
indication of the policy of our Government in connection with these cases 
it is impossible for us to lay down a fixed rule for the governance of our com- 
manders on the Pacific coast under which they shall act intelligently in 
such emergencies. 

We trust, therefore, that, in the light of all the facts in connection with 
this incident now in the possession of the Department, it may be deemed 
consistent to comply promptly with our request as above indicated. 
I have, etc., 

C. P. Huntington, President. 

Mr. Gresham to Mr. Huntington. 

Department of State, 

Washington, December 30, 1893. 
Sm: I have given attention to your letter of the 13th instant, in which 
you refer to the recent firing upon your steamer Costa Rica in the Hondurian 
port of Amapala, and repeat the suggestion contained in your letter of 
November 11, 1893, that a definite policy in respect to surrendering accused 
criminals when claimed by the local authorities in a port of call be outlined 
for the guidance of your commanders. 


It is not practicable to lay down a general fixed rule applicable to the 
varying conditions in such cases. As a comprehensive principle, it is well 
established in international law that a merchant vessel in a foreign port is 
within the local jurisdiction of the country with respect to offenses or offend- 
ers against the laws thereof, and that an orderly demand for surrender of a 
person accused of a crime by due process of law, with exhibit of a warrant 
of arrest in the hands of the regularly accredited officers of the law, may not 
be disregarded nor resisted by the master of the ship. On the same voyage 
when the Amapala incident occurred Captain Dow appears to have acted 
upon this principle in allowing the arrest at other ports, on proper judicial 
warrant, of two or three other passengers accused of crime. That the pas- 
senger may have come on board at the port where the demand is made or at 
another port of the same country is immaterial to the right of local juris- 

Arbitrary attempts to capture a passenger by force, without regular judi- 
cial process, in a port of call may call for disavowal when, as in the present 
case at Amapala, the resort to violence endangers the lives of innocent men 
and the property of a friendly nation. Whether, if force be threatened, the 
master of the vessel is justified in putting in jeopardy, by his resistance, the 
interests committed to his care must be largely a question for his discretion. 
It is readily conceivable that the consequences of futile resistance to over- 
powering force may be such as to make the resistance itself unwarrantable. 

The so-called doctrine of asylum having no recognized application to 
merchant vessels in port, it follows that a shipmaster can found no exercise 
of his discretion on the character of the offense charged. There can be no 
analog}' to proceedings in extradition when he permits a passenger to be 
arrested by the arm of the law. He is not competent to determine whether 
the offense is one justifying surrender or whether the evidence in the case is 
sufficient to warrant arrest and commitment for trial, or to impose condi- 
tions upon the arrest. His function is passive merely, being confined to 
permitting the regular agents of the law, on exhibition of lawful warrant, 
to make the arrest. The diplomatic and consular representatives of the 
United States in the country making the demand are as incompetent to 
order surrender by way of quasi-extradition as the shipmaster is to actively 
deliver the accused. This was established in the celebrated Barrundia case 
by the disavowal and rebuke of Minister Mizner's action in giving to the 
Guatemalan authorities an order for the surrender of the accused. 

If it were generally understood that the masters of American merchant- 
men are to permit the orderly operation of the law in ports of call, as regards 
persons on board accused of crime committed in the country to which the 
port pertains, it is probable on the one hand that occasions of arrest would 
be less often invited by the act of the accused in taking passage with a view 
to securing supposed asylum, and, on the other hand, that the regular resort 
to justice would replace the reckless and offensive resort to arbitrary force 
against an unarmed ship, which, when threatened or committed, has in 
more than one instance constrained urgent remonstrance on the part of this 

I am, etc., W. Q. Gresham. 

(Foreign Relations U. S., 1894, p. 296, 297.) 


Mr. Bayard's letter of November 3, 1885, implies that 
"Neither a diplomatic nor consular officer can oppose the 
taking of a supposed criminal from an American vessel in 
port," and that of November 7, 1885, says: "Nor can he 
order the surrender of such criminal." On March 12, 
1885, Mr. Bayard states: " Vessels entering foreign ports 
are, unless exempted by treaty, amenable to the jurisdic- 
tion of the country." 

Mr. Blaine's position in 1890 was to the effect that " the 
practice in Spanish-American ports is to seek the consent 
of the representative of the country to which the vessel 
belongs." (Letter of November 18, 1890.) In the con- 
clusion of the same letter Mr. Blaine, in speaking of the 
Government, says: "On more than one occasion it has 
permitted its legations and ships of war to offer hospital- 
ity to political refugees. This it has done from motives 
of humanity. Its views would not have been less pro- 
nounced if, in addition to the humane aspects of the sub- 
ject, it had also been confronted with the duty of pre- 
venting the decks of its merchant vessels from being made 
the theater of illegal violence, upon groundless and unlaw- 
ful excuses and without the pretense of legal formality. 

"For your course, therefore, in intervening to permit 
the authorities of Guatemala to accomplish their desire 
to capture General Barrundia I can discover no justifi- 

The criticism of Mr. Mizners action seems to have been 
based, therefore, upon his couise "in intervening to per- 
mit the authorities of Guatemala to accomplish their 
desire to capture General Barrundia.'" The precedents 
cited in the long letter of Mr. Blaine do not all bear upon 
tins point, however. 

Later, on December 30, 1893, Mr. Gresham, as shown 
above, arrives at the conclusion that "right of asj'lum 
has no application to merchant vessels; masters, as well 
as diplomatic and consular officers, can neither assist in 
nor resist the orderly operation of the law of the port." 

Changes in the Navy Regulations. — The United States 
Navy Regulations themselves show to some degree the 
change in attitude since the Barrundia case. The pro- 
visions of the Regulations issued in 1893 are very 


different in their tenor from those which have been 
issued since that time. There has been a marked 
limitation in the statements in regard to asylum. This 
may be taken as an indication of a change of attitude 
on the part of the Government. It is certainly sufficient 
evidence for the determination of the line of action for a 
naval officer of the United States. 

The clauses relating to asylum are here printed. The 
difference between the clauses of 1893 and the clause 
of 1896 is such as to place the whole matter on a very 
different basis. There is but slight difference in the 
wording of the clauses of 1896 and 1900. The word 
"local" is omitted in the issue of 1900. 

The clause as issued in 1900 most nearly accords with 
current opinion, as shown by writers upon international 

Article 287, U. S. Navy Regulations, 1893. 

1. In reference to granting of asylum, in the territorial waters of a 
foreign state, the ships of the United States shall not be made a refuge 
for criminals. 

2. In the case of persons other than criminals they shall be afforded 
shelter whenever it may be needed, to United States citizens first of all, 
and to others, including political refugees, as the claims of humanity may 
require and the service upon which the ships are engaged will permit. 

3. The obligation to receive political refugees and to afford them an 
asylum is in general one of pure humanity. It should not be continued 
beyond the urgent necessities of the situation, and should in no case 
become the means whereby the plans of contending factions or their 
leaders are facilitated. The captain of a ship of the Navy is not to invite 
or encourage such refugees to come on board his ship, but should they 
apply to him his action shall be governed by considerations of humanity 
and the exigencies of the service upon which he is engaged. 

4. When a political refugee has embarked, in the territory of a third 
power, on board a merchant vessel of the United States as a passenger 
for purposes of innocent transit, and it appears upon the entry of such 
vessel into the territorial waters that his life is in danger, it is the duty 
of the captain of a ship of the Navy present to extend to him an offer of 

Article 288, U. S. Navy Regulations, 1896. 

The right of asylum for political or other refugees has no foundation 
in international law. In countries, however, where frequent insurrections 
occur, and constant instability of government exists, local usage sanctions 
the granting of asylum; but even in the waters of such countries officers 
should refuse all applications for asylum except when required by the 


interests of humanity in extreme or exceptional cases, such as the pursuit 
of a refugee by a mob. Officers must not directly or indirectly invite 
refugees to accept asylum. 

Article 308, U. S. Navy Regulations, 1900. 

The right of asylum for political or other refugees has no foundation 
in international law. In countries, however, where frequent insurrections 
occur, and constant instability of government exists, usage sanctions 
the granting of asylum; but even in the waters of such countries officers 
should refuse all applications for asylum except when required by the 
interests of humanity in extreme or exceptional cases, such as the pursuit 
of a refugee by a mob. Officers must not directly or indirectly invite 
refugees to accept asylum. 

Article 308 of the United States Navy Regulations, 
which prescribes the duties of officers in regard to grant- 
ing asylum, does not sanction any direct or indirect 
invitation to refugees to accept asylum. 

The Government may of course permit, as Mr. Blaine 
says, its ships of war "to offer hospitality to political 
refugees," but without such authorization the naval 
officer is at present forbidden to make such offer. 

In other cases where the matter of asylum is in question 
he is in general to remain passive. 

The position taken in the Naval War College Manual 
of International Law seems to be the one most favored 
at present. In speaking of a political refugee, the Manual 
says: "When, instead of preserving the asylum and 
refuge gained by reaching a foreign country, he delib- 
erately exposes himself to arrest and punishment by 
entering the territorial waters of the country in which 
he is considered an offender, he has no claim to the 
protection of any other State/' (p. 30). 

Conclusion. — From the above discussion it is evident 
that in judging of the action of State X the commander 
should seek to know: 

(1) Whether the arrest was made in due form, so far 
as the exigiencies of the disturbed condition of State 
X permitted. 

(2) Whether any treaty provisions between the United 
States and State X touched upon the case of Mr. Smith. 

(3) Whether the trial for the offense, if permitted 
under the treaty and not otherwise prohibited, would be 
fairly conducted. 


To this extent Mr. Smith is entitled to the good offices 
of the official representatives of the United States 

Beyond this it is a general principle that representa- 
tives of the United States in a foreign harbor "can 
neither assist in nor resist the orderly operation of the 
law of the port." 

(b) The question of intervention for the protection of those 
involved in insurrection who, after being sent out of the 
disturbed State, return to its jurisdiction upon a foreign 
merchant vessel. 

The discussion thus far applies in the main to the 
general subject of asylum upon merchant vessels. 

The situation under consideration involves the par- 
ticular phase of asylum in a case where a United States 
citizen who has, after being sent out of State X because 
of implication in the insurrection, returned upon a 
merchant vessel to a port within the jurisdiction of 
State X. 

Attitude of the Department of State. — In the following 
quotation from a letter to the Secretary of the Navy 
from the Secretary of State, dated July 15, 1899, the 
position is taken that Americans, having been allowed to 
leave a foreign country in which they have been impli- 
cated in revolution, by returning to that foreign country 
place themselves beyond the power of intervention of 
their own government in their behalf: 

Sir: I have the honor to acknowledge the receipt of your letter of the 
12th ultimo, inclosing a copy of one to you from Lieutenant-Commander 
Kimball, U. S. Navy, commanding officer of the Vixen, at Bluefields, in 
which he requests general instructions as to the policy of this Government 
respecting the protection of such American citizens as, having taken part 
in the recent insurrection at that place, were allowed to leave the country, 
but who may again return thither and be apprehended and prosecuted 
by the Nicaraguan authorities. 

You request to be advised of the views of this Department on the subject. 

In reply. I have the honor to inform you that an instruction, a copy of 
which is herewith inclosed, was sent to our consul at San Juan del Norte 
on May 13 last, informing him that Americans who were implicated in 
that insurrection, and who have returned to Nicaragua, have placed 
themselves beyond the power of this Government to intervene in their 
behalf should they be recaptured. 


The cases thus foreshadowed do not come under either the Barrundia 
or the Gomez case referred to by Lieutenant-Commander Kimball. Those 
persons were natives of the country, in transit, and on board an American 
ship entering a port of the country without intent to land. The 33 men 
in question were expelled from Nicaraguan territory, and it is apprehended 
that they may attempt to reenter Nicaraguan jurisdiction. Many, if 
not most of them, are understood to be citizens of the United States. 

Effort should be made to warn such persons in time of the risk they run 
in reentering Nicaragua, and, if occasion require, they might be temporarily 
received on an American vessel before they land and before any process 
of arrest under due warrant of law be attempted against them. If, how- 
ever, they actually land, or are arrested by judicial authority on a merchant 
ship in port before endeavoring to land, the naval commander could not 
claim their release or delivery to him but would have to limit his action 
to the exercise of good offices, so far as possible, in conjunction with the 
consular representatives of the United States, to secure for them fair and 
open process of law, with every opportunity for defense, and, if convicted, 
leniency of treatment. 

Conclusion. — While from this letter there may be an 
implication that it applies only to persons who intend to 
land in the state from which they have been expelled, 
yet the right to arrest before landing is admitted. It 
becomes very clear, then, that it is not the province of 
representatives of the United States Government in 
foreign ports to interfere to hinder the due process of 
local judicial procedure. 

It is however proper to use good offices to secure fair 
trial and " leniency of treatment." A naval officer may 
also receive on board temporarily such persons as Mr. 
Smith "before any process of arrest under due warrant 
of law be attempted against them," and "effort should 
be made to warn such persons of the risk they run in 
reentering" the state from which they have been sent. 

The tendency seems to be toward the limitation of 
the so-called right of asylum to more narrow limits 
from }^ear to year, and it may now be said in the language 
of the Regulations of the United States Navy "the 
right of asylum for political and other refugees has no 
foundation in international law." 

Its exercise in advanced states is tolerated rarely, and 
only under very exceptional circumstances, but is some- 
what more frequently tolerated in case of disturbed 
conditions in the less advanced states. 

Situation IV. 

War exists between the United States and State X. A 
war vessel of the United States enters a harbor of State 
Y, a neutral. In the harbor is a supply ship of the United 
States. The war ship is about to take on coal, oil, etc., 
from the supply ship, when the authorities of State Y 
protest against the action as a violation of neutrality and 
forbid the use of the port for such purposes, claiming that 
it would be equivalent to allowing the port to be used for 
the fitting out of an hostile expedition. 

(a) Is the protest of State Y valid? 

(b) What should the commander do? 

(c) Would the case be different provided there was a 
fleet of war vessels of the United States with supply ships 
instead of the two vessels above mentioned? 


(a) The protest of State Y is valid, as State Y has full 
right to regulate the conditions of entrance and sojourn 
of war vessels in her ports. 

(b) The commander should heed the protest as valid. 

(c) The presence of a fleet of war vessels with supply 
ships would make it necessary for State Y to use greater 
care to see that there should be no violation of neutrality. 


Jurisdiction over 'public vessels. — (a) The matter of 
treatment of belligerent war vessels in neutral ports in 
time of war has received much attention. There has 
been a tendency toward uniformity in modern practice. 

The question of jurisdiction of a foreign neutral state 
over a war vessel of a belligerent has been quite fully set 
forth in the opinion rendered by Chief Justice Marshall 
in the case of the Exchange v. M'Faddon. This case has 
been frequently cited as setting forth the fundamental 
principles of jurisdiction and as showing that the juris- 
diction of a state can' be limited 'only by self-imposed 
restriction, and, further, that the state is itself the 



exclusive judge of the nature of those restrictions. Yet 
the determination of the limits of this jurisdiction is to be 
in accord with the general principles set forth in the prac- 
tice of the law of nations. This opinion is worthy of a 
somewhat full presentation: 

Marshall's opinion. — The jurisdiction of the nation within its own terri- 
tory is necessarily exclusive and absolute. It is susceptible of no limitation 
not imposed by itself. Any restriction upon it, deriving validity from an 
external source, would imply a diminution of its sovereignt}* to the extent 
of the restriction and an investment of that sovereignty to the same extent 
in that power which could impose such restriction. 

All exceptions, therefore, to the full and complete power of a nation 
within its own territories must be traced up to the consent of the nation 
itself. They can flow from no other legitimate source. 

This consent may be either express or implied. In the latter case it is 
less determinate, exposed more to the uncertainties of construction, but, if 
understood, not less obligatory. 

The world being composed of distinct sovereignties, possessing equal 
rights and equal independence, whose mutual benefit is promoted by inter- 
course with each other and by an interchange of those good offices which 
humanity dictates and its wants require, all sovereigns have consented to a 
relaxation in practice, in cases under certain peculiar circumstances, of that 
absolute and complete jurisdiction within their respective territories which 
sovereignty confers. 

This consent may, in some instances, be tested by common usage, and 
by common opinion growing out of that usage. 

A nation would justly be considered as violating its faith, although that 
faith might not be expressly plighted, which should suddenly and without 
previous notice exercise its territorial powers in a manner not consonant 
to the usages and received obligations of the civilized world. 

The full and absolute territorial jurisdiction being alike the attribute of 
every sovereign, and being incapable of conferring extraterritorial power, 
would not seem to contemplate foreign sovereigns nor their sovereign rights 
as its objects. One sovereign being in no respect amenable to another, and 
being bound by obligations of the highest character not to degrade the dig- 
nity of his nation by placing himself or its sovereign rights within the juris- 
diction of another, can be supposed to enter a foreign territory only under 
an express license or in the confidence that the immunities belonging to his 
independent sovereign station, though not expressly stipulated, are reserved 
by implication and will be extended to him. 

This perfect equality and absolute independence of sovereigns, and this 
common interest impelling them to mutual intercourse and an interchange 
of good offices with each other, have given rise to a class of cases in which 
every sovereign is understood to waive the exercise of a part of the com- 
plete exclusive territorial jurisdiction which has been stated to be the attri- 
bute of every nation. 


First. One of these is admitted to be the exemption of the person of the 
sovereign from arrest or detention within a foreign territory. * * * 

Second. A second case, standing on the same principles with the first, is 
the immunity which all civilized nations allow to foreign ministers. * * * 

Third. A third case in which a sovereign is understood to cede a portion 
of his territorial jurisdiction is where he allows the troops of a foreign prince 
to pass through his dominions. * * * 

But the rule which is applicable to armies does not appear to be equally 
applicable to ships of war entering the ports of a friendly power. The 
injury inseparable from the march of an army through an inhabited country 
and the dangers often, indeed generally, attending it do not ensue from 
admitting a ship of war without special license into a friendly port. A dif- 
ferent rule, therefore, with respect to this species of military force has been 
generally adopted. If, for reasons of state, the ports of a nation generally, 
or any particular ports, be closed against vessels of war generally or the 
vessels of any particular nation, notice is usually given of such determina- 
tion. If there be no prohibition the ports of a friendly nation are consid- 
ered as open to the public ships of all powers with whom it is at peace, and 
they are supposed to enter such ports and to remain in them, while allowed 
to remain, under the protection of the government of the place. 

In almost every instance the treaties between civilized nations contain 
a stipulation to this effect in favor of vessels driven in by stress of weather 
or other urgent necessity. In such cases the sovereign is bound by compact 
to authorize foreign vessels to enter his ports. The treaty binds him to 
allow vessels in distress to find refuge and asylum in his ports, and this is a 
license which he is not at liberty to retract. It would be difficult to assign 
a reason for withholding from a license thus granted any immunity from 
local jurisdiction which would be implied in a special license. 

If there be no treaty applicable to the case, and the sovereign, from 
motives deemed adequate by himself, permits his ports to remain open to 
the public ships of foreign friendly powers, the conclusion seems irresistible 
that they enter by his assent; and if they enter by his assent, necessarily 
implied, no just reason is perceived by the court for distinguishing their 
case from that of vessels which enter by express assent. 

In all cases of exemption which have been reviewed much has been 
implied, but the obligation of what was implied has been found equal to the 
obligation of that which was expressed. Are there reasons for denying the 
application of this principle to ships of war? 

In this part of the subject a difficulty is to be encountered, the seriousness 
of which is acknowledged but which the court will not attempt to evade. 

Those treaties which provide for the admission and safe departure of 
public vessels entering a port from stress of weather or other urgent cause, 
provide in like manner for the private vessels of the nation; and where 
public vessels enter a port under the general license which is implied merely 
from the absence of a prohibition, they are, it may be urged, in the same 
condition with merchant vessels entering the same port for the purposes of 
trade, who can not thereby claim any exemption from the jurisdiction of 

18239— 05 5 


the country. It may be contended, certainly with much plausibility, if not 
correctness, that the same rule and same principle are applicable to public 
and private ships; and since it is admitted that private ships entering with- 
out special license become subject to the local jurisdiction, it is demanded 
on what authority an exception is made in favor of ships of war. 

It is by no means conceded that a private vessel, really availing herself of 
an asylum provided by treaty, and not attempting to trade, would become 
amenable to the local jurisdiction, unless she committed some act of for- 
feiting the protection she claims under compact. On the contrary, motives 
may be assigned for stipulating and according immunities to vessels in cases 
of distress which would not be demanded for or allowed to those which enter 
voluntarily and for ordinary purposes. On this part of the subject, how- 
ever, the court does not mean to indicate any opinion. The case itself may 
possibly occur and ought not to be prejudged. 

Without deciding how far such stipulations in favor of distressed vessels, 
as are usual in treaties, may exempt private ships from the jurisdiction of 
the place, it may safely be asserted that the whole reasoning upon which 
such exemption has been implied in other cases applies with full force to the 
exemption of ships of war in this. 

"It is impossible to conceive," says Vattel, "that a prince who sends an 
ambassador or any other minister can have any intention of subjecting him 
to the authority of a foreign power: and this consideration furnishes an 
additional argument, which completely establishes the independency of a 
public minister. If it can not be reasonably presumed that his sovereign 
means to subject him to the authority of a prince to whom he is sent, the 
latter, in receiving the minister, consents to admit him on the footing of 
independency; and thus there exists between the two princes a tacit con- 
vention, which gives a new force to the natural obligation." 

Equally impossible is it to conceive, whatever may be the construction 
as to private ships, that a prince who stipulates a passage for his troops, or 
an asylum for his ships of war in distress, should mean to subject his army 
or his navy to the jurisdiction of a foreign sovereign. And if this can not 
be presumed, the sovereign of the port must be considered as having con- 
ceded the privilege to the extent in which it must have been understood to 
be asked. 

To the court it appears that where, without treaty, the ports of the 
nation are open to the public and private ships of a friendly power, whose 
subjects have also liberty without special license, to enter the country for 
business or amusement, a clear distinction is to be drawn between the rights 
accorded to private individuals or private trading vessels and those accorded 
to public armed ships which constitute a part of the military force of the 

The preceeding reasoning has maintained the propositions that all exemp- 
tions from territorial jurisdictions must be derived from the consent of the 
sovereign of the territory; that this consent may be implied or expressed; 
and that when implied its extent must be regulated by the nature of the 
case and the views under which the parties requiring and conceding it must 
be supposed to act. 


After mentioning the treatment of private ships, Mr. 
Chief Justice Marshall further says: 

But in all respects different is the situation of a public armed ship. She 
constitutes a part of the military force of her nation ; acts under the imme- 
diate and direct command of her sovereign ; is employed by him in national 
objects. He has many and powerful motives for preventing those motives 
from being defeated by the interference of a foreign state. Such inter- 
ference can not take place without affecting his power and his dignity. 
The implied license, therefore, under which such vessel enters a friendly 
port may reasonably be construed, and it seems to the court, ought to be 
■construed, as containing an exemption from the jurisdiction of the sovereign 
within whose territory she claims the rights of hospitality. 

Upon these principles, by the unanimous consent of nations, a foreigner 
is amenable to the laws of the place : but certainly in practice nations have 
not yet asserted their jurisdiction over the public armed ships of a foreign 
sovereign entering a port open for their reception. * * * 

It seems, then, to the court, to be a principle of public law that national 
ships of war entering the port of a friendly power open for their reception 
are to be considered as exempted by the consent of that power from its 
jurisdiction. (U. S Supreme Court Reports, 7 Cranch, 116, Exchange 
v. M'Faddon.) 

Later opinions of the court. — This opinion of Chief 
Justice Marshall has been most widely and approvingly 
quoted as showing the fundamental grounds for the 
exemption of war vessels of one state from the jurisdiction 
of another state even when in the ports of the second 

The Supreme Court has also frequently referred to this 

In a subsequent case (The Santissima Trinidad, 7 
Wheaton, 283) the United States Supreme Court says: 

In the case of the Exchange (7 Cranch, 116) the grounds of the exemp- 
tion of public ships were fully discussed and expounded. It was there 
shown that it was not founded upon any notion that a foreign sovereign 
had an absolute right, in virtue of his sovereignty, to an exemption of his 
property from the local jurisdiction of another sovereign, when it came 
within his territory; for that would be to give him sovereign power beyond 
the limits of his own empire. But it stands upon principles of public comity 
and convenience, and arises from the presumed consent or license of nations, 
that foreign public ships coming into their ports, and demeaning themselves 
according to law and in a friendly manner, shall be exempt from the local 
jurisdiction. But as such consent and license is implied only from the gen- 
eral usage of nations, it may be withdrawn upon notice at any time, without 
just offense, and if afterwards such public ships come into our ports they 


are amenable to our laws in the same manner as other vessels. To be sure, 
a foreign sovereign can not be compelled to appear in our courts, or be made 
liable to their judgment . so long as he remains in his own dominions, for the 
sovereignty of each is bounded by territorial limits. 

If, however, he comes personally within our limits, although he generally 
enjoy a personal immunity, he may become liable to judicial process in the 
same way and under the same circumstances as the ships of his nation. 
But there is nothing in the law of nations which forbids a foreign sovereign, 
either on account of the dignity of his station, or the nature of his preroga- 
tive, from voluntarily becoming a party to a suit in the tribunals of another 
country, or from asserting there any personal, or proprietary, or sovereign 
rights, which may be properly recognized and enforced by such tribunals. 
It is a mere matter of his own good will and pleasure; and if he happens to 
hold a private domain within another territory, it may be that he can not 
obtain full redress for any injury to it, except through the instrumentality 
of its courts of justice. It may therefore be justly laid down as a general 
proposition, that all persons and property within the territorial jurisdiction 
of a sovereign are amenable to the jurisdiction of himself or his courts; and 
that the exceptions to this rule are such only as by common usage and 
public policy have been allowed, in order to preserve the peace and har- 
mony of nations and to regulate their intercourse in a manner best suited 
to their dignity and rights. It would indeed be strange if a license implied 
by law from the general practice of nations, for the purposes of peace, should 
be construed as a license to do wrong to the nation itself, and justify the 
breach of all those obligations which good faith and friendship, by the same 
implication, impose upon those who seek an asylum in our ports. (U. S. 
Supreme Court Reports, 7 Wheaton, 283, p. 473.) 

Proclamation, 1870. — The proclamation by President 
Grant on October 8, 1870, gives a very full statement of 
belligerent rights in neutral ports. 

By the President of the United States of America. 

Regulating the conduct of vessels of war of either belligerent in the waters 
within the territorial jurisdiction of the United States. 

Whereas on the 22d day of August, 1870, my proclamation was issued, 
enjoining neutrality in the present war between France and the North 
German Confederation and its allies and declaring, so far as then seemed to 
be necessary, the respective rights and obligations of the belligerent parties 
and of the citizens of the United States; and 

Whereas subsequent information gives reason to apprehend that armed 
cruisers of the belligerents may be tempted to abuse the hospitality accorded 
to them in the ports, harbors, roadsteads, and other waters of the United 
States, by making such waters subservient to the purposes of war: 

Now, therefore, I, Ulysses S. Grant, President of the United States of 
America, do hereby proclaim and declare that any frequenting and use of 


the waters within the territorial jurisdiction of the United States by the 
armed vessels of either belligerent, whether public ships or privateers, for 
the purpose of preparing for hostile operations, or as posts of observation 
upon the ships of war or privateers or merchant vessels of the other belliger- 
ent lying within or being about to enter the jurisdiction of the United States, 
must be regarded as unfriendly and offensive and in violation of that 
neutrality which it is the determination of this Government to observe: and 
to the end that the hazard and inconvenience of such apprehended practices 
may be avoided, I further proclaim and declare that, from and after the 12th 
day of October instant, and during the continuance of the present hostilities 
between France and the North German Confederation and its allies, no ship 
of war or privateer of either belligerent shall be permitted to make use of 
any port, harbor, roadstead, or other waters within the jurisdiction of the 
United States as a station or place of resort for any warlike purpose, or for 
the purpose of obtaining any facilities of warlike equipment: and no ship of 
war or privateer of either belligerent shall be permitted to sail out of or leave 
any port, harbor, or roadstead or waters subject to the jurisdiction of the 
United States from which a vessel of the other belligerent (whether the same 
shall be a ship of war, a privateer, or a merchant ship) shall have previously 
departed, until after the expiration of at least twenty-four hours from the 
departure of such last-mentioned vessel beyond the jurisdiction of the 
United States. 

If any ship of war or privateer of either belligerent shall, after the time 
this notification takes effect, enter any port, harbor, roadstead, or waters 
of the United States, such vessel shall be required to depart and to put to 
sea within twenty-four hours after her entrance into such port, harbor, road- 
stead, or waters, except in case of stress of weather or of her requiring pro- 
visions or things necessary for the subsistence of her crew, or for repairs; 
in either of which cases the authorities of the port or of the nearest port 
(as the case may be) shall require her to put to sea as soon as possible after 
the expiration of such period of twenty-four hours, without permitting her 
to take in supplies beyond what may be necessary for her immediate use; 
and no such vessel which may have been permitted to remain within the 
waters of the United States for the purpose of repair shall continue within 
such port, harbor, roadstead, or waters for a longer period than twenty-four 
hours after her necessary repair shall have been completed, unless within 
such twenty-four hours a vessel, whether ship of war, privateer, or merchant 
ship of the other belligerent, shall have departed therefrom, in which case 
the time limited for the departure of such ship of war or privateer shall be 
extended so far as may be necessary to secure an interval of not less than 
twenty-four hours between such departure, and that of any ship of war, 
privateer, or merchant ship of the other belligerent which may have pre- 
viously quit the same port, harbor, roadstead, or waters. 

No ship of war or privateer of either belligerent shall be detained in any 
port, harbor, roadstead, or waters of the United States more than twenty- 
four hours, by reason of the successive departures from such port, harbor, 
roadstead, or waters, of more than one vessel of the other belligerent. But 
if there be several vessels of each or either of the two belligerents in the same 


port, harbor, roadstead, or waters, the order of their departure therefrom 
shall be so arranged as to afford the opportunity of leaving alternately to 
the vessels of the respective belligerents, and to cause the least detention 
consistent with the objects of this proclamation. No ship of war or priva- 
teer of either belligerent shall be permitted, while in any port, harbor, road- 
stead, or waters within the jurisdiction of the United States, to take in any 
supplies except provisions and such other things as ma}" be requisite for the 
subsistence of her crew, and except so much coal only as may be sufficient 
to earn- such vessel, if without sail power, to the nearest European port of 
her own country: or in case the vessel is rigged to go under sail, and may 
also be propelled by steam power, then with half the quantity of coal which 
she would be entitled to receive if dependent upon steam alone: and no coal 
shall be again supplied to any such ship of war or privateer in the same or 
any other port, harbor, roadstead, or waters of the United States, without 
special permission, until after the expiration of three months from the time 
when such coal may have been last supplied to her within the waters of the 
United States, unless such ship of war, or privateer shall, since last thus 
supplied, have entered a European port of the government to which she 

In testimony whereof I have hereunto set my hand and caused the seal 
of the United States to be affixed. 

Done at the city of Washington this 8th day of October, in the year of our 
Lord 1870, and of the independence of the United States of America the 

[seal.] U. S. Grant. 

By the President: 

Hamilton Fish, 

Secretary of State. 

(Foreign Relations U. S. 1870, p. 48.) 

Domestic law. — The position of the Government of the 
United States, so far as domestic law is concerned, is set 
forth in the following statute: 

Sec. 5285. Every person who, within the territory or jurisdiction of the 
United States, increases or augments, or procures to be increased or aug- 
mented, or knowingly is concerned in increasing or augmenting, the force 
of any ship of war, curiser, or other armed vessel which, at the time of her 
arrival within the United States, was a ship of war or cruiser or armed 
vessel in the service of any foreign prince or state or of any colony, district, 
or people, or belonging to the subjects or citizens of any such prince or 
state, colony, district, or people, the same being at war with any foreign 
prince or state or of any colony, district, or people with whom the United 
States are at peace, by adding to the number of the guns of such vessel 
or by changing those on board of her for guns of a larger caliber or by add- 
ing thereto any equipment solely applicable to war, shall be deemed guilty 
of a high misdemeanor and shall be fined not more than one thousand 
dollars and be imprisoned not more than one year. 

(U. S. Revised Statutes.) 


British regulations. — The British regulations show the 
position of a great maritime power toward the control 
of the general conduct of war vessels in a foreign port by 
the authorities of that port. 

Queen's Regulations and Admiralty Instructions, 1899, 
provide for Great Britain as follows: 

592. Subject to any limit which the neutral authorities may place upon 
the number of belligerent cruisers to be admitted to any one of their ports 
at the same time, the captain, by the comity of. nations, may enter a neu- 
tral port with his ship for the purpose of taking shelter from the enemy or 
from the weather or for obtaining provisions or repairs that may be press- 
ingly necessary. 

593. He is bound to submit to any regulations which the local authori- 
ties may make respecting the place of anchorage, the limitation of the 
length of stay in the port, the interval after a hostile cruiser has left the 
port before his ship may leave in pursuit, etc. 

594. He must abstain from any acts of hostility toward the subjects, 
cruisers, vessels, or other property of the enemy which he may find in the 
neutral port. 

595. He must also abstain from increasing the number of his guns, from 
procuring military stores, and from augmenting his crew even by the enroll- 
ment of British subjects. 

Thus it is seen that the decision of the courts, procla- 
mations, domestic laws, and regulations alike agree upon 
the growing tendency to prescribe more and more defi- 
nitely the exact range of action which may be permitted 
to a belligerent war vessel in a neutral port. In no case 
is there a doubt that the neutra] state has a right to 
make regulations upon this subject. The proclamations 
of neutrality issued in recent wars also show a tendency 
to become explicit in outlining belligerent rights in neu- 
tral ports. This has been particularly the case since the 
civil war in the United States and the adjustment of the 
Alabama claims. 

Neutrality proclamations. — The neutrality proclama- 
tions issued by various governments during the Spanish- 
American war of 1898 show the tendency toward specific 
restriction of belligerent action so far as it affects neu- 
trals. The proclamations issued during the Russo- 
Japanese war in 1904 are even more specific in many 
instances than those issued in 1898. 


The British neutrality proclamation of April 23, 1898, 
following the treaty of May 8, 1871, provides that— 

A neutral government is bound — 


Secondly. Not to permit or suffer either belligerent to make use of its 
ports or waters as the base of naval operations against the other, or for the 
purpose of the renewal or augmentation of military supplies or arms or 
the recruitment of men. 

The circular letter from the foreign office of February 
10, 1904, gives the full and latest statement of the British 
position upon this subject: 

Rule 3. No ship of war of either belligerent shall hereafter be permitted, 
while in any such port, roadstead, or waters subject to the territorial juris- 
diction of Her Majesty, to take in any supplies, except provisions and such 
other things as may be requisite for the subsistence of her crew, and except 
so much coal only as may be sufficient to carry such vessel to the nearest 
port of her own country or to some nearer named neutral destination, and 
no coal shall again be supplied to any such ship of war in the same or in 
any other port, roadstead, or waters subject to the territorial jurisdiction 
of Her Majesty, without special permission, until after the expiration of 
three months from the time when such coal may have been last supplied 
to her within British waters as aforesaid. (The London Gazette Extraor- 
dinary, February 11, 1904.) 

Articles IX and X of the decree of April 6, 1864, re- 
vised in 1895, provided that for Itaiy — 

In no case can a belligerent ship make use of an Italian port for purpose 
of warfare or to supply itself with arms or ammunition. It can not, under 
pretext of repairs, execute works in any way adapted to increase its war- 
like force. 

Nothing shall be supplied to belligerent ships of war or cruisers except- 
ing provisions, commodities, and things for repairs simply necessary for 
their crews and the safety of their voyage. Such belligerent ships of war 
or cruisers as wish to resupply themselves with coal shall not receive that 
supply until twenty-four hours after their arrival. 

The mercantile marine code of Italy also makes pro- 
vision on this matter: 

Aet. 248. In no case can a belligerent ship make use of an Italian port 
for war purposes or to provision itself with arms or munitions. No work 
can be executed under the pretext of repairs which in any way could add 
to the fighting strength of the vessel. 

The circular letter of the Brazilian ministry of foreign 
affairs of April 29, 1898, is even more explicit in its terms 


upon the subject of supplying belligerent vessels in its 
ports. Section XIJ of this letter reads: 

It will not be permitted to either of the belligerents to receive in the 
ports of the Republic goods coming directly for them in the ships of any 
nation whatever. 

This means that the belligerents may not seek ports en route and on 
account of an unforeseen necessity while having the intention of remaining 
in the vicinity of the coasts of Brazil, taking thus beforehand the necessary 
precautions to furnish themselves with the means of continuing their 
enterprises. The tolerance of such an abuse would be equivalent to allow- 
ing our ports to serve as a base of operation for the belligerents. 

The Netherlands proclamation of neutrality in the 
Russo-Japanese war, issued in February, 1904, enters 
even more into details in prescribing the treatment of 
belligerent ships in its port than was the case at the time 
of the Spanish- American war of 1898. This may be in 
part due to the nearness of some of its colonial possessions 
to the seat of hostilities. 

Such provisions as the following occur: 

Article IV. It is prohibited within the Kingdom to provide ammunition 
or arms to war ships or either of the belligerent parties to assist them in 
any way toward the increase of their men, arms, or equipment and to the 
making of repairs, as also toward the providing of the material or imple- 
ments necessary thereto. 

The same prohibition is made in regard to every vessel that is evidently 
destined for the direct conveyance to a war ship of either of the belligerent 
parties of the assistance or goods above mentioned in the first clause. 

Article V. It is prohibited without the previous sanction thereto from 
the proper authority to afford within the territory of the Kingdom to any 
war ship of the belligerent parties provisions or fuel. 

Rights of vessels in port. — From various points of view 
it is evident that belligerent war vessels in neutral ports 
in time of war have, aside from the customary right of 
entrance in case of stress of weather or other absolute 
necessity, no rights beyond such as the neutral state may 

Entrance for purposes having no bearing upon the con- 
duct of hostilities is generally conceded to war vessels. 
This is, however, in most instances now denied to pri- 
vateers and to armed vessels with prizes and to vessels 
captured as prize. 


Risley says: 

A neutral government must prevent its ports from being used as a base 
of operations and supplies by the ships of either belligerent. 

In time of war, as in time of peace, public vessels may freely enter a 
foreign port in the absence of prohibition by the state to whom the port 
belongs. But if a neutral power chooses to close its ports to the public 
vessels of both belligerents, the latter can only enter under stress of 
weather or in case of absolute necessity. This practice has been already 
adopted by many states with reference to one class of belligerent public 
vessels, namely, prizes taken from the enemy, and it is possible that, hav- 
ing regard to the strict impartiality expected from neutrals, it may be 
eventually extended to belligerent public vessels of every kind. The 
British regulations of 1862, described below, go far in this direction. At 
present, however, the rule is that, in the absence of prohibition, a bel- 
ligerent man-of-war may enter a neutral port and make such repairs and 
take in such coal and provisions as may be necessary to enable it to navi- 
gate safely. Hospitality is lawful, but anything over and above this, 
amounting to an augmentation of force, is not. To permit a belligerent 
ship of war to receive such an illegal augmentation of force is a breach of 
neutrality and vitiates all captures subsequently made by the ship which 
has received it. (See La Santissima Trinidad, footnote, p. 197.) 

Owing to the very modern development of steam, international law does 
not as yet contain an authoritative rule as to the purchase of coal by a 
belligerent in neutral ports. During the American civil war Great Britain 
allowed ships of war to take in only so much coal in British ports as would 
suffice to carry them to the nearest port of their own country, and refused 
any second supply to the same vessel, without special permission, until 
after the expiration of three months. 

These regulations enable a belligerent ship to navigate safely without 
adding to its fighting power and prevent it from making the neutral port 
a base of operations by coaling there at frequent intervals. 

The United States adopted similar regulations during the Franco- 
Prussian war, and the usage of the two countries is not unlikely to become 
general in the future. (J. S. Risley, Law of War, p. 205.) 

Lawrence (Principles' ot International Law, page 503) 


The rule of abstention from active hostility in neutral waters or on neu- 
tral land has received in comparatively recent times an obvious and reason- 
able extension. It is now the duty of belligerents — 

To abstain from making on neutral territory direct preparations for acts 
of hostility. 

Warlike expeditions may not be fitted out within neutral borders, nor 
may neutral land or waters be made the base of operations against an 
enemy. The fighting forces of a belligerent may not be reinforced or 
recruited in neutral territory, and supplies of arms and warlike stores or 
other equipments of direct use for war may not be obtained therein. But 
these prohibitions do not extend to remote uses and the supplies and equip- 


ments that are useful for such purposes as sustaining life or carrying on nav- 
igation. Provisions may be purchased by belligerent ships lying in neutral 
ports, and they may take on board masts, spars, and cordage, and even 
undergo repairs, but nothing beyond what is necessary to make them sea- 
worthy must be done to them. Any structural changes that increase their 
efficiency as instruments of attack and defense are strictly forbidden, as 
well as any augmentation of their warlike force. 

A neutral state may, if it chooses, restrict the amount of innocent supplies 
allowed to belligerent ships who take advantage of the hospitality of its 
ports and waters, and a usage is springing up of permitting such vessels to 
take on board only a limited quantity of coal. A distinction must, however, 
be drawn between prohibitions which depend entirely upon the will of the 
neutral and prohibitions which are imposed by international law. The 
former can be made or unmade, strengthened or relaxed at pleasure, and 
as long as they are reasonable in themselves and applied with absolute 
impartiality to both sides in the struggle no power has any reason to com- 
plain. The latter are fixed and constant, and if a belligerent ignores them 
or a neutral suffers them to be ignored the aggrieved parties, whether neu- 
tral or belligerent, can demand reparation and take means to prevent a 
repetition of the offense. 

We have seen that a belligerent is bound not to use neutral territory as a 
base of operations or as a convenient place for the organization of warlike 
expeditions which may proceed from thence to attack the enemy or prey 
upon his commerce. 

But it is impossible to understand the nature and extent of these obliga- 
tions without an examination of the exact sense to be attached to the two 
phrases, "base of operations" and " warlike expedition." The former is 
a technical term of the military art, and was introduced into international 
law when the growing sense of state duty rendered it necessary to define 
with accuracy the limits of belligerent liberty and neutral forbearance. It 
is to be found in the second of the three rules of the treaty of Washington 
of 1871, but the Geneva arbitrators did not attempt to explain it in their 
award. Hall quotes from Jomini, the great French writer on the art of war, 
a definition of a base of operations as a place or station "from which an 
army draws its resources and reinforcements, that from which it sets forth 
on an offensive expedition, and in which it finds a refuge at need." He 
goes on to contend that "continued use is above all things the crucial test 
of a base," and it is difficult to resist the arguments in favor of this view, 
which applies to a fleet or a single ship as well as to an army or a detachment 
of troops. The drawing of supplies once or twice from a given point in the 
course of long-continued hostilities will not make it into a base. 

The general position may be said to be well established. 
With changed conditions, more definite rules are neces- 

Even during the American civil war ships of war were only permitted 
to be furnished with so much coal in English ports as might be sufficient to 
take them to the nearest port of their own country, and were not allowed to 


receive a second supply in the same or any other port, without special per- 
mission, until after the expiration of three months from the date of receiving 
such coal. The regulations of the United States in 1870 were similar, no 
second supply being permitted for three months unless the vessel requesting 
it had put into a European port in the interval. 

There can be little doubt that no neutral states would now venture to 
fall below this measure of care; and there can be as little doubt that their 
conduct will be as right as it will be prudent. When vessels were at the 
mercy of the winds it was not possible to measure with accuracy the supplies 
which might be furnished to them, and as blockades were seldom contin- 
uously effective, and the nations which carried on distant naval operations 
were all provided with colonies, questions could hardly spring from the use 
of foreign possessions as a source of supplies. Under the altered conditions 
of warfare matters are changed. When supplies can be meted out in 
accordance with the necessities of the case, to permit more to be obtained 
than can, in a reasonably liberal sense of the word, be called necessary for 
reaching a place of safety is to provide the belligerent with means of aggres- 
sive action, and consequently to violate the essential principles of neutral- 
ity. (Hall, International Law, 5th ed., p. 106.) 

Woolsey says : 

The same spirit of humanity, as well as respect for a friendly power, 
imposes on neutrals the duty of opening their ports to armed vessels of both 
belligerents for purposes having no direct relation to the war and equally 
likely to exist in the time of peace. Cruisers may sail into neutral harbors 
for any of the purposes for which merchant vessels of either party frequent 
the same places, except that merchant vessels are suffered to take military 
stores on board, which is forbidden generally, and ought to be forbidden, to 
ships of war. (International Law, section 167.) 

Conclusions. — The rapid changes in the means and 
methods of conducting maritime hostilities has made 
necessary the development of new regulations in regard 
to the treatment of belligerent vessels in neutral ports. 
These regulations will naturally change with further 
development in means and methods of warfare. 

It may be safely said that belligerent vessels in neutral 
ports in time of war can scarcely be said to have rights, 
but only such privileges as the neutral state may grant, 
which are generally of entrance for purposes which are 
not warlike in character, in intent, or in effect. 

In other words, the neutral state must maintain its 
neutrality, even though it grants belligerent war vessels 
certain privileges within its ports. 

Kleen clearly presents the case: 


11 appartient a tout Etat sou ve rain de decider lui-meme dans quelle 
mesure il veut permettre aux etrangers Fusage de ses ports et rades, comme 
de ses eaux territoriales en general; et ce droit de decision est independant 
du but et de la nature de Pemploi. Juridiquement, un navire de guerre ne 
peut pas exiger plus d'hospitalite pour ses visites d'exercice, qu'un navire 
de commerce pour son trafic, un pleasure-yacht pour ses excursions. La 
seule priorite juridique des navires de guerre consiste dans leur extemtori- 
alite, Faeces une fois admis. Mais quant a Faeces lui-meme, ils n'y ont pas 
plus de droit que d'autres navires; et ils sont soumis, autant que ceux-ci, 
au devoir d'obL'ir a l'ordre present par le souverain et les autorites des 

Un etat de guerre n'apporte en general a F application de cette regie pas 
d'autres modifications que celles qui decoulent des devoirs d'un Etat neutre, 
particulierement de son devoir de faire valoir son inviolabilite territoriale 
contre les abus eventuels de Fhospitalite commis par les belligerants en vue 
de renforts ou d'autres buts de guerre, et de proteger contre toute hostilite 
tant les belligerants eux-memes que d'autres etrangers admis soit a l'asile 
soit a Faeces simple, l'experience ayant demontre combien la presence de 
navires de guerre des belligerents en port neutre peut devenir dangereuse 
a ces deux egards. Mais, a ces restrictions apport'^es par le devoir, pour 
garantir la neutralite de FEtat et les droits de chacun, le souverain du ter- 
ritoire est naturellement libre d'ajouter les ordoimances qu'il lui plait et 
qu'il trouvc convenables, pour sauvegarder l'ordre chez lui, en considerant, 
par exemple, sa situation geographique, les circonstances specialement 
difficiles, des interets particuliers etc., — bien entendu sans favoriser ou 
d^favoriser Fune des parties bellig.'rantes comme telle plus que Fautre. 
(La Neutralite, I, p. 530.) 

Halleck's International Law, Baker's ed., II, p. 166, 
maintains that, 

Moreover, the extent of a nation's sovereign rights depends, in some 
measure, upon its municipal laws, and other powers are bound not only to 
abstain from violating such laws, but to respect the policy of them. The 
municipal laws of a state for the protection of the integrity of its soil and 
the sanctity of its neutrality are sometimes more stringent than the general 
laws of war. The right of a sovereign state to impose such restrictions and 
prohibitions, consistent with the general policy of neutrality, as it may see 
fit is undeniable. And all acts of the officers of a belligerent power against 
the municipal law of a neutral state or in violation of its policy involve that 
government in responsibility for their conduct. 

In the situation as proposed, State Y, a neutral, has 
protested against the taking of coal, oil, etc., by a war 
vessel of the United States, a belligerent, from one of 
its supply vessels lying in the neutral port of State Y. 
State Y claims that to permit such an act would be equiv- 
alent to allowing the port to be used as a place for 
fitting out a hostile expedition. 


From the nature of the supply ship, a United States 
vessel, State Y would not care to exercise any jurisdic- 
tion over it beyond the ordinary port jurisdiction. 

The intent of the sending of such a vessel is with a 
view of fitting out the war vessel for more effective and 
extended service. Naturally, as the neutral state 
could not determine the amount or kind of supplies 
which the war vessel might take from the supply ship, 
it could not guard its neutrality. To allow this action 
to proceed would be much like transforming its port 
into a coaling station, at which the war vessel might 
take on supplies even with more safety than at one of 
its own ports, as it would be under the protection of the 
neutrality of the port and not liable to attack from the 
enemy. Such a transfer of supplies would not be a 
commercial transaction, but an actual part of the military 
operations of the United States. 

To permit such action would be equivalent to allowing 
the port to be used as a base for military operations. 

The neutrality regulations of Brazil in 1898 distinctly 
stated, "It will not be permitted to either of the bel- 
ligerents to receive in the ports of the Republic goods 
coming directly for them in the ships of any nation 

This position of Brazil goes a step further than the 
case under consideration, as this involves receiving 
supplies from a United States supply ship, while the 
Brazilian regulation forbids such action in case of " ships 
of any nation whatever.'' 

(a) The protest of State Y is valid and fully justified; 
indeed to maintain her neutrality State Y must use due 
diligence to prevent such action. 

(b) Owing to the reasons as set forth already, the 
commander must conform to the just demands of the 
authorities of State Y. 

(c) The onhy difference in case there was a fleet of 
war vessels with supply ships in the port would be one 
of degree. The evidence of an intent to use the port 
ot Y as a base for hostile operations would be more clear 
even, and the duty of State Y would be more plain. 

Situation V. 

While war exists between the United States and State 
X a number of the war vessels of State X are pursued 
by a United States fleet and seek refuge in a port of 
State Y, a neutral. The commander of the United 
States fleet, after waiting outside the port for twenty- 
four hours, protests to the authorities 01 State Y, claim- 
ing that as the vessels of the enemy have entered the 
neutral port to escape his fleet they may not justly be 
sheltered longer. 

(a) Is the position taken by the United States com- 
mander correct? 

(b) What should the authorities of State Y do ? 


'(a) The United States commander would be justified 
in requesting that belligerent vessels entering and 
remaining in the neutral port solely in order to escape 
capture by his fleet be interned for the remaining period 
of the war. 

(b) The authorities of State Y would be acting in 
accord with the best opinion in granting his request. 


The twenty-four hour rule. — (a) The commander of 
the United States fleet waits twenty-four hours before 
entering his protest, probably on the ground that a 
belligerent war vessel is usually allowed twenty-four 
hours sojourn in a neutral port. 

Upon this practice, however, there is considerable 
difference of opinion, some writers considering it to 
have the force of law, others regarding it as in effect only 
when so proclaimed. 

Text writers' opinions. — Risley, discussing sojourn of a 
belligerent ship in a neutral port, says: 

There is on principle no reason for limiting the stay of a belligerent 
ship in a neutral port, provided of course that she receives no augmenta- 



tion of force there; but in the event of a ship belonging to the other bel- 
ligerent appearing at the same port, restrictions become necessaiy in order 
to prevent a collision in neutral waters. 

In 1759 Spain laid down the rule that the first of two vessels of war 
belonging to different belligerents to leave one of her ports should not 
be followed by the other until the expiration of twenty-four hours. At 
first this rule was only imposed upon privateers, the word of a captain 
of a ship of war that he would not commit hostilities being sufficient ; but 
it has now been extended to all ships of war by most of the great states, 
including Great Britain, France, and the United States. 

The "twenty-four hours rule," as it is called, is not, however, sufficient 
of itself to prevent abuse of neutral ports. In 1861 the United States ship 
Tuscarora took advantage of the rule to practically blockade the Confed- 
erate cruiser XashriUe in Southampton Water. The Tuscarora contrived 
always to start before the Nashrille, when the latter attempted to sail, 
and returned before the twenty-four hours — during which the Nashville 
had to stay behind — had expired. A similar case occurred during 1862 
at Gibraltar, where the Confederate ship Sumter was practically blockaded, 
at first by the Tuscarora, and afterwards by the Ino and Kearsarge. This 
blockade was terminated by the sale of the Sumter to a British subject, 
and her subsequent escape to England. She was ultimately wrecked in 
attempting to run the blockade of Charleston. Accordingly, in 1862 
Great Britain laid down the rule that war vessels of either belligerent 
must not remain in British ports for more than twenty-four hours, except 
under stress of weather, or in order to effect necessary repairs, in either 
of which cases the ship must put to sea as soon as possible after the expira- 
tion of the twenty-four hours. 

During the Franco-Prussian war this rule was again adopted by Great 
Britain, and also by the United States, and, taken in conjunction with the 
old "twenty-four hours rule," seems likely to be accepted in the future 
for the regulation of the hospitality accorded to belligerent cruisers in 
neutral ports. But it can never be a hard-and-fast rule of International 
Law, because, as Hall well observes, "the right of the neutral to vary his 
own port regulations can never be ousted. The rule can never be more 
than one to the enforcement of which a belligerent may trust in the absence 
of notice to the contrary." (J. S. Risley, The Law of War, p. 206.) 

Lawrence gives considerable attention to the subject 
but does not regard the rule as fixed : 

We will consider next the duty of belligerent states to obey all reasonable 
regulations made by neutral states for the protection of their neutrality. 

This duty relates chiefly, though not exclusively, to maritime affairs. 
The land forces of the combatants are not permitted to enter neutral 
territory, but unless a neutral expressly forbids the entry of belligerent 
war ships, they may freely enjoy the hospitality of its ports and waters. 
Permission is assumed in the absence of any notice to the contrary, but 
nevertheless it is a privilege based upon the consent of the neutral, and 
therefore capable of being accompanied by any conditions he chooses to 


impose. Belligerent commanders can demand that they shall not be asked 
to submit to unjust and unreasonable restraints, and that whatever rules 
are made shall be enforced impartially on both sides. But further they 
can not go. Where they enter on sufferance they must respect the wishes 
of those who permit their presence. Only when their vessels are driven 
by stress of weather, or otherwise reduced to an unseaworthy condition, 
can they demand admission as a matter of strict law. Their right to 
shelter under such circumstances is called the right of asylum, and it 
can not be refused by a neutral without a breach of international duty. 
In recent times neutral states have acted upon their right of imposing 
conditions upon belligerent vessels visiting their ports. The twenty-four 
hour rule is the oldest and the most common. It lays down that when 
war vessels of opposing belligerents are in a neutral ports at the same time, 
or when war vessels of one side and merchant vessels of the other are in 
the like predicament, at least twenty-four hours shall elapse between the 
departure of those who leave first and the departure of their opponents. 
The object of this injunction is to prevent the occurrence of any fighting, 
either in the waters of the neutral or so close to them as to be dangerous 
to vessels frequenting them. Sometimes the word of the commanders 
that they will not commence hostilities in or near neutral territorial waters 
has been accepted as sufficient. Greater precautions were generally taken 
for the restraint of privateers; but the practical abolition of privateering 
by the Declaration of Paris has made obsolete the distinction between two 
classes of belligerent cruisers. The possibility of evading the twenty-four 
hours rule was shown by the conduct of the United States steamer Tus- 
carora at Southampton in December, 1861, and January, 1862. The 
southern cruiser Nashville was undergoing repairs in the harbor, and 
by keeping steam up, claiming to precede her whenever she attempted to 
depart, and then returning within a day, the Tuscarora really blockaded 
her in a British port. In the end a British ship of war, exercising a right 
which a neutral possesses in extreme cases, escorted the Nashville past the 
Tuscarora and out to sea, while the latter was forbidden to leave the port 
for twenty-four hours. This and other circumstances caused the British 
Government to issue, on January 31, 1862, a series of neutrality regula- 
tions more stringent than any hitherto published. They provided that no 
ship of war of either belligerent should be permitted to leave a British port 
from which a ship of war or merchant vessel of the other belligerent had 
previously departed, until after the expiration of at least twenty-four hours 
from the departure of the latter. They laid down further that war vessels 
of either belligerent should be required to depart within twenty-four hours 
of their entry, unless they needed more time for taking in innocent supplies 
or effecting lawful repairs, in which case they were to obtain special permis- 
sion to remain for a longer period, and were to put to sea within twenty- 
four hours after the reason for their remaining ceased. They might freely 
purchase provisions and other things necessary for the subsistence of their 
crews; but the amount of coal they were allowed to receive was limited to 
as much as was necessary to take them to the nearest port of their country. 

18239—05 6 


Moreover, no two supplies of coal were to be obtained in British waters 
within three months of each other. These restrictions upon the liberty of 
belligerent vessels in British ports have been reimposed in subsequent wars. 
The United States adopted them in 1S70 at the outbreak of the conflict be- 
tween France and German}', and other powers have copied them wholly or 
in part. In fact, they have become so common that they are sometimes 
regarded as rules of International Law. This is especially the case with 
regard to the supply of coal. It is often said that a neutral state is bound 
to allow belligerent cruisers to take on board no more than is sufficient to 
carry them to the nearest port of their own country. Such an obligation 
is unknown to the law of nations, which arms neutrality with authority to 
impose what restraint they deem necessary, but does not condemn them if 
they impose none. (Lawrence, Principles of International Law, p. 509.) 

Hall regards the twenty-lour rule as " practically sure 
to be enforced in every war:" 

Marine warfare so far differs from warfare on land that the forces of a 
belligerent may enter neutral territory without being under stress from 
their enemy. Partly as a consequence of the habit of freely admitting 
foreign public ships of war belonging to friendly powers to the ports of a 
state as a matter of courtesy, partly because of the inevitable conditions 
of navigation, it is not the custom to apply the same rigdr of precaution 
to naval as to military forces. A vessel of war may enter and stay in a 
neutral harbor without special reasons; she is not disarmed on taking refuge 
after defeat; she may obtain such repair as will enable her to continue her 
voyage in safety; she may take in such provisions as the needs; and if a 
steamer, she may fill up with enough coal to enable her to reach the nearest 
port of her own country; nor is there anything to prevent her from enjoy- 
ing the security of neutral waters for so long as may seem good to her. To 
disable a vessel, or to render her permanently immovable, is to assist her 
enemy; to put her in a condition to undertake offensive operations is to 
aid her country in its war. The principle is obvious; its application is sus- 
ceptible of much variation; and in the treatment of ships, as in all other 
matters in which the neutral holds his delicate scale between two belliger- 
ents, a tendency toward the enforcement of a harsher rule becomes more 
defined with each successive war. 

It is easy to fix the proper means of repairs; difficulties short of such 
circumstances as those which have already been discussed may sometimes 
occur with reference to supplies of coal or provisions; but if a belligerent 
can leave a port at his will, the neutral territory may become at any time a 
mere trap for an enemy of inferior strength. According^, during a consid- 
erable period, though not very generally or continuously, neutral states 
have taken more or less precaution against the danger of their waters being 
so used. Perhaps the usual custom until lately may be stated as having 
been that the commander of a vessel of war was required to give his word 
not to commit hostilities against any vessel issuing from a neutral shortly 
before him, and that a privateer as being less responsible person, was sub- 
jected to detention for twenty-four hours. The disfavor however, with 


which privateers have long been regarded has not infrequently led to their 
entire exclusion, save in cases of danger from the sea or of absolute neces- 
sity; and the twenty-four hours rule has been extended to public ships of 
war by Italy, France, England, the United States, and Holland. Probably 
it may now be looked upon as a regulation which is practically sure to be 
enforced in every war. (Hall, International Law, 5th ed., p. 626.) 

Hall also points out that the earlier view of the twenty- 
four hour rule was not sufficient to cover the cases which 
may easily arise, and that a limit to the time of sojourn 
should be made more definite. This position taken by 
Hall is emphasized by the differentiation in modern war 
vessels in respect to speed and seaworthiness. 

On the general subject of the twenty-four hour rule 
Hall says: 

It will probably be found necessary to supplement the twenty-four hours 
rule by imposing some limit to the time during which belligerent vessels 
may remain in a neutral port when not actually receiving repairs. The 
insufficiency of the twenty-four hours rule, taken by itself, is illustrated by 
an incident which occurred during the American civil war. In the end of 
1861, the United States corvette Tuscarora arrived in Southampton 
waters with the object, as it ultimately appeared, of preventing the exit of 
the Confederate cruiser Nashville, which was then in dock. By keeping up 
steam and having slips on her cable, so that the moment the Nashville 
moved the Tvscarora could precede her, and claim priority of sailing, by 
moving and returning again within twenty-four hours and by notifying 
and then postponing her own departure, the latter vessel attemoted and for 
some time was able to blockade the Nashville within British waters. 

In order to guard against the repetition of such acts, it was ordered in 
the following January that during the continuance of hostilities any 
vessel of war of either belligerent entering an English port "should be 
required to depart and to put to sea within twenty-four hours after her 
entrance into such port, except in case of stress of weather, or of her requir- 
ing provisions or things necessary for the subsistence of her crew, or repairs ;" 
in either of which cases the authorities of the port were ordered "to require 
her to put to sea as soon as possible after the expiration of such period of 
twenty-four hours." In 1870 [and in 1898] the same rule was laid down; 
and the United States, unwilling to allow the others the license which she 
permitted to herself, adopted an identical resolution. It. is perhaps not 
unlikely soon to become general. (Hall, International Law, 5th ed., 
p. 628.) 

With these opinions continental writers in the main 
concur, some asserting it even more strongly than the 
British writers cited. 

It is evident that while the twenty-four hour rule can 
not be held to be obligatory upon a neutral at the present 


time in the absence of the neutral's own declaration to 
that effect, it is nevertheless in a high degree incumbent 
upon a neutral State to enforce the rule. 

The technical correctness of the action of the com- 
mander in waiting twenty-four hours may be admitted, 
provided that it is granted that belligerent vessels may 
seek a neutral port in order to escape capture or defeat 
at the hands of the enemy. 

Twenty-four hour rule in 'proclamations. — The procla- 
mations of neutrality of the various States at the time of 
the Spanish-American war show the current of opinion. 

The regulation of Great Britain, which in spirit serves 
as a model to a large number of others, is as follows upon 
this point: 


Rule 2. If there is now in any such port, roadstead, or waters subject 
to the territorial jurisdiction of the British Crown any ship of war of either 
belligerent, such ship of war shall leave such port, roadstead, or waters 
within such time (not less than twenty-four hours) as shall be reasonable, 
having regard to all the circumstances and the condition of such ship as to 
repairs, provisions, or things necessary for the subsistence of her crew; and 
if after the date hereof any ship of war of either belligerent shall enter any 
such port, roadstead, or waters subject to the territorial jurisdiction of the 
British Crown, such ship shall depart and put to sea within twenty-four 
hours after her entrance into any such port, roadstead, or waters, except in 
case of stress of weather, or of her requiring provisions or things necessary 
for the subsistence of her crew, or repairs, in either of which cases the 
authorities of the port, or of the nearest port (as the case may be), shall 
require her to put to sea as soon as possible after the expiration of such 
period of twent}*-four hours, without permitting her to take in supplies 
beyond what may be nesessary for her immediate use ; and no such vessel 
which may have been allowed to remain within British waters for the 
purpose of repair shall continue in any such port, roadstead, or waters for 
a longer period than twenty-four hours after her necessary repairs shall 
have been completed. Provided, nevertheless, that in all cases in which 
there shall be any vessels (whether ships of war or merchant ships) of both 
the said belligerent parties in the same port, roadstead, or waters within 
the territorial jurisdiction of Her Majesty, there shall be an interval of not 
less than twenty-four hours between the departure therefrom of any such 
vessel (whether a ship of war or merchant ship) of the one belligerent, and 
the subsequent departure therefrom of any ship of war of the other bel- 
ligerent; and the time hereby limited for the departure of such ships of 
war respectively shall always, in case of necessity, be extended so far as may 
be requisite for giving effect to this proviso, but no further or otherwise. 


(The same communication is sent by Lord Lansdowne 
to the Lords Commissioners of the Admiralty, etc., 
February 10, 1904.) 

The British regulation would make it obligatory for a 
belligerent vessel to depart at the end of the twenty- 
four hour period, unless, on account of necessary repairs, 
provisions, stress of weather, or presence in port of a ship 
of the tfther belligerent. 

The colonial regulations are in some instances more 

China in the main follows Great Britain, though requir- 
ing the officials in charge of the port to compel the vessel 
to leave at the expiration of the period. 


(2) After issuance of this proclamation, should any war ship of either 
belligerent come into a Chinese port, except on account of heavy winds or 
storms, or to obtain food for crews or for repairs, it must not remain over 
twenty-four hours, and the officials in charge of the port or waterway must, 
at the end of twenty-four hours, compel said boat to leave, and must not per- 
mit the loading of more provisions than are actually needed by the crew. 
In case of repairs, the ship must leave within twenty-four hours after 
repairs are completed. No delay must be premitted. War or merchant 
ships, of whichever nation, in a Chinese port, must be separated in leaving 
by twenty-four hours' time, and must not leave before or remain longer 
than said time. 

The proclamation of Japan is more general, as is the 
Netherlands proclamation and the Dutch West Indies 
regulations : 


2. No man-of-war or other ship belonging to one or the other of the 
belligerent powers shall be permitted to commit any act of war or visit, 
search, or capture merchantmen within the territorial waters of the Empire. 
Neither shall such man-of-war or such other ship be allowed to make use 
of any portion of the territorial waters of the Empire as the basis or head- 
quarters of naval operations or for any warlike purposes whatever. 

3. The men-of-war and other ships used for warlike purposes, belonging to 
one or the other of the belligerent powers, may enter any of the ports that 
are open to ships for ordinary purposes of navigation, but should not stay 
in the waters of such port longer than twenty-four hours. In case when 
such men-of-war or such other ships used for warlike purposes have been 
compelled to seek the waters of such port on account of unavoidable cir- 
cumstances, such as stress of weather, destitution of articles necessary for 


navigation, or disablement, and are unable to quit the port within twenty- 
four hours, they should leave the territorial waters of the Empire as soon 
as such circumstance or circumstances shall have ceased to exist. 


Article I. The vessels and ships of war of the parties at war shall be 
admitted to the Kingdom's sea channels, mentioned in article 1 of the 
royal order of February 2, 1893 (Official Gazette, No. 46), with due observ- 
ance of the further provisions of that order, for a sojourn not exceeding 
twenty-four hours, unless it is absolutely necessary that a longer sojourn 
be granted them, either for the procuring of provender or coal or in case 
of distress or dangers of the sea. 


Article I. Ships and vessels of war of the belligerents will be admitted 
to the harbors and roadsteads of the colony for a stay of twenty-four hours 
at most, unless it is shown to be necessary to grant them a longer stay to 
enable them to provide themselves with provisions or coal, or in cases of 
distress or in dangers of the sea. In such cases, however, they must depart 
as soon as they have finished taking in provisions or coal, within the first 
twenty-four hours, if possible; otherwise, as quickly as practicable, as soon 
as the danger is past , and in the case of repairs within twenty-four hours 
at the furthest after the repairs have been finished. The period of twenty- 
four hours at the utmost fixed for the stay in port shall be exceeded only 
when necessary to the execution of the provisions of article 5 of this pub- 
lication. Such quantity of provisions may be taken on board as is suffi- 
cient for the subsistence of the crew, but the supply of coal must not be 
more than sufficient to enable the ship or vessel to reach the nearest port 
of the country to which it belongs or that of one of its allies in the war. 
The same vessel shall not be supplied a second time with coal until at least 
three months have elapsed since the former supply, unless special per- 
mission be granted to that effect. 

The Italian regulation is concise and definite. 


Art. VII. No belligerent ship of war or cruiser can remain more than 
twenty-four hours in a port or roadstead, or on the coasts of the Kingdom, 
or in the adjacent waters, even when it comes there alone, except in case 
of arrival under stress on account of bad weather, of damages, or want of 
the necessary provisions for the safety of the voyage. 

For Russia a longer delay than twenty-four hours 
requires special Imperial authorization. 


The Imperial Government further declares that the ships of war of two 
belligerent powers may only enter Russian ports for twenty-four hours. 
In case of stress of weather, absence of goods or provisions necessary to 


the maintenance of the crew, or for indispensable repairs, the prolongation 
of the above-mentioned time can only be accorded by special authoriza- 
tion of the Imperial Government. 

The proclamation of Brazil, one of the fullest in its 
provisions, makes definite reference to the refuge from 
the enemy. 


No war ship or privateer shall be permitted to enter and remain with 
prizes in our ports or bays during more than twenty-four hours, except 
in case of a forced putting into port, and in no manner shall it be permitted 
to it to dispose of its prizes or of articles coming out of them. 

By the words "except in case of a forced putting into port" should also 
be understood that a ship shall not be required to leave port within the 
said time : 

First. If it shall not have been able to make the preparations indis- 
pensable to enable it to go to sea without risk of being lost. 

Second. If there should be the same risk on account of bad weather. 

Third, and finally, if it shall be menaced by an enemy. 

In these cases it shall be for the Government, at its discretion, to deter- 
mine, in view of the circumstances, the time within which the ship should 

Conclusion. — It may be said in regard to the protest 
of the commander that he is in the main justified in 
making a protest against a sojourn of longer than twenty- 
four hours on the part of the war vessel of State X unless 
the sojourn be on the grounds of special necessity and 
not for military reasons. In this position the opinions of 
writers and the general drift of neutrality proclamations 

Internment. — (b) The question next arising is in regard 
to the proper course of action of State Y, a neutral, in 
view of the fact that the belligerent vessels of State X 
have sought her port to escape the capture by the vessels 
of the United States. 

Land forces thus entering neutral territory are interned 
for the remainder of the war. Some maintain that the 
same course should be pursued in regard to maritime 

Unmanned vessel in neutral port. — The completed tor- 
pedo boat Somers belonging to the United States was 
not allowed to leave the British port for military pur- 
poses during the Spanish war. The dispatches concern- 
iug this boat show that the boat was practically interned. 


Mr. Hay to Mr. Whin. 

Department of State, 

Washington, November 19, 1898. 
Sir: In view of a letter from the Secretary of the Navy, dated the 15th 
instant, you are instructed to make, if practicable, arrangements with the 
British Government permitting the bringing to the United States of the 
torpedo boat Somers, now stored at Falmouth, England, giving assurance 
that in case of the resumption of hostilities with Spain this vessel will not 
be made use of. 

I am. etc., John Hay. 

Mr. White to Mr. Hay. 

American Embassy, 

London, December 10, 1898. 

Sir: Referring to your instruction 959, of the 19th ultimo, I have the 
honor to inform you that upon the day of its receipt I called at the foreign 
office and had an interview with Mr. Assistant Under Secretary Villiers, 
through whom I requested Her Majesty's Government to allow the torpedo 
boat Somers to leave Falmouth, on the understanding that in the event 
of a renewal of hostilities between ourselves and Spain she should not be 
made use of. 

I subsequently addressed a note, of which I inclose a copy, to the Marquis 
of Salisbury on the subject, and you will observe from his lordship's reply, 
which is also transmitted herewith, that our request has been granted. 

I yesterday communicated this fact to you by a telegram, whereof I 
inclose a copy. 

I have. etc.. Henry- White. 

Mr. White to Lord Salisbury. 

American Embassy, 

London, December 1 , 1898. 
My Lord: I have the honor, in accordance with instructions from the 
Secretary of State, to invite the good offices of your lordship with a view 
to obtaining the consent of Her Majesty's Government to the departure 
from Falmouth, where she has been stored since the outbreak of the war, 
of the United States torpedo boat Somers. 

I am instructed, in making this request, to give assurance to your lord- 
ship, in behalf of my Government, -that in case hostilities should unfor- 
tunately be resumed with Spain, which would now appear to be highly 
improbable, the Somers will not be made use of, and I venture to hope 
that, upon this understanding. Her Majesty's Government may see their 
way to allow her to leave for the United States. 

I have, etc., Henry ^YHTTE. 


Lord Salisbury to Mr. White. 

Foreign Office, December 8, 1898. 

Sir: I have the honor to acknowledge the receipt of your note of the 
1st instant, in which you invite my good offices with a view of obtaining 
the consent of Her Majesty's Government to the departure from Falmouth, 
where she has been stored since the outbreak of the war, of the United States 
torpedo boat Somers. You add that you are instructed by the United 
States Government to give an assurance that in the event of hostilities 
being resumed with Spain, which would now appear to be highly improb- 
able, the Somers will not be made use of. 

In view of this assurance I have the honor to state that Her Majesty's 
Government are glad to comply with your request, and that the necessary 
instructions will at OHce be sent to the proper authorities in order to facili- 
tate the departure of the vessel. 

I have, etc., F. H. Villiers, 

(For the Marquis of Salisbury. ) 

(United States Foreign Relations, 1898, p. 1006.) 

Asylum to vessels pursued by enemy. — Galiani (Dei 
doveri dei principi neutrali, I, cap. X, §4) maintains that 
asylum can be afforded to a ship pursued into neutral 
waters by an enemy only on condition that it* practically 
be interned for the remainder of the war. 

Gessner opposes this position of Galiani (Le Droit des 
neutres, p. 78). Perels follows Gessner, maintaining that 
even in a case where entrance to neutral waters is for- 
bidden to a belligerent ship the position of Galiani is not 
justifiable, because the prohibition ought to hold only 
against voluntary and not against forced entrance. 
(Seerecht, section 39, II, a.) 

Fiore (Droit International, III, p. 476) maintains that 
it seems that there should be a difference made between 
ships of war of the belligerents which are forced by the 
elements to make an entrance and those which seek the 
port as a refuge to escape pursuit by a victorious enemy 
about to capture or to sink them. In the first case, ac- 
cording to the usages of international law, the neutral 
state ought not to disarm the ship nor to prevent it from 
again taking part in the hostilities; but the second case 
is altogether exceptional, since the victor may be de- 
prived of his prey through the protection afforded. This 
is without question an act of humanity, but if the bel- 
ligerent can not continue his attack upon his opponent 


in territorial waters, he should not be allowed to obtain 
safety and after making repairs to return to the combat. 
The refugee would thus obtain the protection of the neu- 
tral not only to escape the superior victorious force, but 
also to put himself again in condition for battle. Fol- 
lowing this line of reasoning, Fiore concludes that the 
duties of humanity should be reconciled with the exigen- 
cies of war by preventing the belligerent ship from taking 
further part in the war, by retaining it in port, after 
disarming, or by allowing it to depart only after obtain- 
ing the word of the commander not to take any part 
during the remainder of the war. 

The question of asylum to belligerent vessels in time 
of war in neutral ports was fully considered by the Insti- 
tute of International Law in 1898. The report of the 
Institute recognized the difference between forces upon 
the sea and those upon land, due to natural conditions, 
which made it impossible to obtain supplies, fuel, repairs, 
etc., with the same facility as upon land, and also recog- 
nized the special dangers from the natural elements, as 
from stress of weather. The Institute in its discussions 
recognized the propriety of admitting belligerent vessels 
to neutral ports in time of war upon such grounds as 
might be regarded broadly as grounds of humanity. An 
admission to neutral ports under such conditions, for such 
specific purposes, limiting supplies, etc., to those abso- 
lutely necessary, and the duration of sojourn to period 
likewise absolutely necessary, would be no violation of 
neutrality, nor would it make the neutral port a base of 
military operations. It was held that such action of the 
neutral was not military in its nature and did not neces- 
sarily affect the issue of the conflict or modify the rela- 
tions of the belligerent. 

On the other hand, the admission to a neutral port of 
a .belligerent ship pursued by its opponent and unable or 
even unwilling to meet its pursuer is to put the pursued 
ship beyond the reach of the other belligerent even more 
effectively than might have been the case had she entered 
one of her home ports. Such action may directly influ- 


ence the issue of the war. Yet, in the first place it is 
admittedly impossible for the neutral in every instance to 
prevent the entrance of a vessel thus pursued, and in the 
second place the neutral may not allow any combat 
within neutral jurisdiction. 

If the neutral allows the belligerent vessel fleeing from 
its opponent to find refuge in its neutral'port for a time 
and then to go forth to meet the enemy, the neutral in 
effect makes the port a base of operations. The fleeing 
belligerent may in many instances within the twenty-four 
hour period summon and receive such reenf orcement that 
when she again goes forth she may join with other of the 
forces of State X sufficient to secure her own safety or to 
threaten the force of the United States. In many other 
ways the twenty-four hour sojourn may be a decided or 
even a decisive military advantage. It is evident in this 
situation that the vessel of State X entered the port of 
Y from overwhelming military reasons. The vessel en- 
tered to escape capture or destruction by the enemy. 
To afford shelter under such circumstances and to allow 
the vessel to again set forth from the neutral port upon a 
military expedition is to act as an ally of State X. 

In order that the neutral may not violate neutrality 
and in order that the pursuing belligerent may not be 
deprived of some of the rewards of his effort to place his 
enemy beyond the power of further contest, there seems 
to be a single line of approved conduct, viz, to intern the 
belligerent vessel coming within neutral jurisdiction in 
order to escape capture by a pursuing enemy. 

Kleen, in La Neutrality, 1898, Volume I, on page 533, 
says : . 

Done, un naivre de guerre fuyant devant Pennemi et refugie dans un port 
neutre, y est traite a Pinstar des fuyards de la guerre continental , e'est-a- 
dire desarme et interne apres avoir joui des soins humanitaires ; tandis 
qu'au contraire, le naivre entre en disette ou detresse proprement dite peut 
et doit quitter le port et mettre au large aussitot qu'il est hors de danger. 

Opinion of the Institute o] International Law. — Kleen was 
also instrumental in drawing up the rules adopted by the 


Institute of International Law in 1898. These were 
unanimously adopted, as follows: 

i Annuaire del' Tnstitut de Droit International, XVII, 1898, Ses$io)> de la 
ffaye, i hi, i, 886 J) 

Art. 42 La concession d'asile auz belligerants dans les ports neutres, tout 
en dependant de la decision de l'Etat souverain du port et ne pouvant §tre 
cxigee. est presunu'e, a moins de notification contraire prealablement com- 

Toutefois, quant aux navires de guerre, elle doit etre hmitee aux cas de 
veritable detresse, par suite de: (1°) Defaite, maladie ou equipage insufn- 
sant, (2°) peril de mer, (3°) manque des moyens d'existence ou de loco- 
motion (eau, charbon, vivres), (4°) besoin de reparation. 

Un navire belligerant se refugiant dans un port neutredevant la poursuite 
de l'ennemi,ou apres avoir ete defait par lui, ou faute d'equipage pour tenir 
la mer, doit y roster jusqu'a la fin de la guerre. II en est de meme s'il y 
transporte des malades ou des blesses, et qu 'apres les avoir debarques, il 
soit en etat de combattre. Les malades et les blesses, tout en etant re^us 
et secourus, sont, apres guerison, internes egalement, a moins d'etre recon- 
nus impropres au service militaire. 

Un refuge contre un peril de mer n'est donne aux navires de guerre des 
belligerants que pour la duree du danger. On ne leur fournit de l'eau, du 
charbon, des vivres et autres approvisionnements analogues qu'en la quan- 
tity necessaire pour atteindre le port national le plus proche. Les repara- 
tions ne sont permis que dans la mesure necessaire pour que le batiment 
puisse tenir la mer. Immediatement apres, le navire doit quitter le port et 
les eaux neutres. 

Si deux navires ennemis sont prets a sortir d'un port neutre simultane- 
ment, l'autorite locale etablit, entre leurs appareillage, un intervalle suffi- 
sant de vingt-quatre heures au moins. Le droit de sortir le premier appar- 
tient au navire le premier entre, ou, s'il ne veut pas en user, a l'autre, a la 
charge d'en reclamer Texercice a l'autorite locale, qui lui delivre l'autori- 
sation si l'adversaire, dument avise, persiste a rester. Si, a la sortie du 
navire d'un belligerant, un ou plusieurs navires ennemis sont signales, le 
navire sortant doit etre avert i et peut etre readmis dans le port pour y 
attendre l'entree ou la disparition des autres. II est defendu d'aller a la 
rencontre d'un navire ennemi dans le port ou les eaux neutres. 

Les navires des belligerants doivent, en port neutre, se conduire pacifique- 
ment, ob.'ir aux ordres des autorites, s'abstenir de toutcs hostilities, de toute 
prise de renfort et de tout recrutement militaire, de tout espionnage et de 
tout emploi du port comme base d'operation. 

Les autorites neutres font respecter, au besoin par la force, les prescrip- 
tions de cet article. 

L'Etat neutre peut exiger une indemnite de l'Etat belligerant dont il a 
entretenu soit des forces legalement internees, soit des malades et blesses, 
ou dont les navires ont, pas megarde ou par infraction a l'ordre du port, 
occasionne des frais ou dommage. 


Internment in Russo-Japanese War. — On August 10, 
1904, the Czarevitch, a Russian battle ship, accompanied 
by destroyers, pursued by a Japanese fleet, sought shelter 
in the port of Tsingtau, and the German authorities 
interned the vessels. Certain other Russian vessels were 
interned at British ports in which they sought shelter. 
The Russian transport Lena received like treatment by 
the United States at San Francisco. 

Conclusion. — (a) From the point of view of both theory 
and practice it would seem that the United States com- 
mander, under the circumstances as stated in the situa- 
tion, would be justified in claiming that belligerent 
vessels entering and remaining in the neutral port in 
order to escape capture by his vessels, should be interned 
for the remaining period of the war. 

(b) The authorities of State Y would also be under 
obligations to intern the vessels of State X thus seeking 
neutral protection. 

Situation VI. 

(a) During the war between the United States and 
State X a commander of a United States war vessel enters 
a port of State Y. a neutral, and sends a cipher message 
to the regular telegraph office for transmission to his 
home government. Under orders from the authorities 
of State Y the message is refused at the office. The 
commander protests. 

(b) The commander then sends an openly worded 
message, which is also refused unless the authorities 
are permitted to reword the message without materially 
changing its apparent meaning. The authorities also 
claim the right to refuse to transmit any portions of the 
message which they deem fit, provided they give notice 
to the commander that such portions will not be trans- 
mitted. The commander again protests against all 
these claims. 

How far is the position of State Y correct in each case ? 


(a) The position of neutral State Y in refusing to allow 
the transmission of the telegram in cipher is correct. 
It is entirely proper for a neutral state to forbid such use 
of a line or cable. 

(b) State Y has full right to prohibit the transmission 
of any or all such messages. The authorities of State Y 
would have no right to mutilate a dispatch already 
accepted for transmission, but could prescribe such 
restrictions as seemed necessary in regard to the form 
in which messages should be accepted. 


(a) Right to control the telegraph. — The first situation 
involves the right of a neutral to prohibit the sending 
of cipher messages by a belligerent from a neutral point 
to his home government. 

In this case, as stated, the message is submitted in 
cipher by the commander of a United States war vessel 
for transmission to his home government. 



The inference would without reasonable question be 
that such message would be military in its nature, 
because sent by a military commander to his home 
government, and further because embodied in cipher. 

The situation then further reduces to that of the right 
of a neutral to regulate or cpntrol the sending of official 
military dispatches from points within his territory to a 
belligerent government. 

The general right of control of the telegraphic commu- 
nication by a government has been repeatedly claimed 
and exercised by various governments, particularly in 
case of such lines as pass from one state to another. 
In general this control extends to the right to demand 
priority in the transmission of government dispatches 
or to absolute control in case of necessity. 

The character of the act would be the same should 
the message be submitted for transmission as in the 
situation given whether the line of transmission were by 
land or submarine telegraph. The possibilities of inter- 
ruption of the transmission by the other belligerent 
would, however, be very different in the two cases. 

Control by the United States. — The right of control 
of cables has been asserted in very definite form by the 
United States. A somewhat full discussion elsewhere 
presented before this Naval War College indicates 
that — 

The right to legislate for this form of property is therefore in the power 
of the state, or in case no legislation has been enacted the legal control 
is in the proper department of the Government. This position was affirmed 
by Secretary Fish as early as July 10, 1869, as follows: 

"It is not doubted by this Government that the complete control of the 
whole subject, both of the permission and the regulation of foreign inter- 
course, is with the Government of the United States, and that however 
suitable certain legislation on the part of a State of the Union may become, 
in respect to proprietary rights in aid of such enterprises, the entire question 
of allowance or prohibition of such means of foreign intercourse, commer- 
cial or political, and of the terms and the conditions of its allowance, is 
under the control of the Government of the United States." (Wilson, 
Submarine Telegraphic Cables in their International Relations, p. 10.) 

President Grant took practically the same position 
in his message of December, 1875, and since that time 
the position has often been reaffirmed. All foreign sub- 


marine cables having a terminus in the United States 
have been landed under a distinct condition that the 
"Executive permission is to be accepted and understood 
by the company as being subject to any future action 
of Congress in relation to the whole subject of submarine 
telegraphy.' ' A late opinion of the Attorney-General, 
in accordance with which the President was entitled 
to act and to order all the departments of executive 
character to act, sums up the matter as follows: 

The preservation of our territorial integrity and the protection of our 
foreign interests is intrusted, in the first instance, to the President. * * * 

The President has charge of our relations with foreign powers. It is his 
duty to see that in the exchange of comities among nations we get as much 
as we give. He ought not to stand by and permit a cable to land on our 
shores under concessions from a foreign power which does not permit our 
cables to land on its shores and enjoy there facilities equal to those accorded 
its cable here. * * * The President is not only the head of the diplo- 
matic service, but commander in chief of the Army and Navy. A sub- 
marine cable is of inestimable service to the Government in communicating 
with its officers in the diplomatic and consular service, and in the Army 
and Navy when abroad. The President should therefore demand that 
the Government have precedence in the use of the line, and this was done 
by President Grant in the third point of his message. * * * The 
Executive permission to land a cable is of course subject to subsequent 
Congressional action. The President's authority to control the landing 
of a foreign cable does not flow from his right to permit it in the sense of 
granting a franchise, but from his power to prohibit it should he deem it 
an encroachment on our rights or prejudicial to our interests. The uncon- 
ditional landing of a foreign cable might be both, and therefore to be 
prohibited, but a landing under judicious restrictions and conditions 
might be neither, and therefore to be permitted in the promotion of inter- 
national intercourse. (22 Opins. Atty. Gen., p. 25.) 

Hongkong-M anila cable in 1898. — Certain correspond- 
ence carried on during the Spanish-American war of 
1898 shows that a new cable between a point occupied 
by a belligerent and a neutral point could not properly 
be laid in time of war without laying the neutral open 
to the suspicion of violation of neutrality. 

Mr. Hay to Mr. Day. 

American Embassy, 
London, May 11, 1898. 
The Marquis of Tweeddale, president of Hongkong and Manila Telegraph, 
informs me that they hold their concessions from Spanish Government, 


on condition that they shall not send telegrams when forbidden by Spain. 

This formal order has been given by Spain . They are therefore compelled 

to cease working for the present. He professed friendly feelings and 

desire that we should establish ourselves permanently in Philippine Islands, 

but declared inability to act otherwise in view of his concessions. 


Mr. Day to Mr. Hay. 

Department of State, 

Washington, May 22, 1898. 
Spanish control by special franchise cable from Manila to Hongkong. 
Admiral Dewey has possession of the end of the cable at Manila, but can 
not control end at Hongkong. British ambassador has telegraphed 
British minister for foreign affairs for permission to land new cable at 
Hongkong, to be constructed by American company; he also advises 
British minister for foreign affairs that you will see him on the subject. 
See him at once and ascertain if concession can be had for American 


Mr. Day to Mr. Hay. 

Department of State, 
Washington, May 31, 1898. 
Sir: I have received your telegram of the 26th instant, winch, de- 
ciphered, reads as follows: 

British minister for foreign affairs is taking opinion of the law officers 
of the Crown regarding Manila cable. Answer not yet received, but I have 
reason to think it will be negative. Concessions regarded as violation of 

Respectfully, yours, William R. Day. 

Mr. Hay to Mr. Day. 

American Embassy, 
London., June 1, 1898. 
British Government regret not at liberty to comply with our request to 
land cable at Hongkong. 


Mr. Hay to Mr. Day. 

American Embassy, 
London, June 1, 1898. 
Sir: Referring to my dispatch No. 407, of the 24th of May, and to my 
cabled dispatch of the 26th of May, I now have the honor to transmit a copy 
of a note just received from the Marquis of Salisbury, in which he informs me 

1S239— 05 7 


that he has consulted the lord chancellor and the attorney and the solicitor 
general in regard to our request that landing facilities at Hongkong should 
be granted to an American cable from Manila, and expresses his regret that 
as he is advised by Her Majesty's Government is not at liberty to comply 
with the proposal of the Government of the United States. 

As you will have learned by my cable dispatch, I had anticipated this 
decision. My conversation with high diplomatic and legal authorities had 
convinced me that they could not authorize us to land a cable at Hongkong 
without a breach of neutrality. 

I am, etc., John Hay. 

Lord Salisbury to Mr. Hay. 

Foreign Office, May 27, 1898. 

Your Excellency: You expressed to me on Monday last the desire of 
the United States Government that a cable should be laid from Manila to 
Hongkong, and requested that Her Majesty's Government would grant 
landing facilities at Hongkong for that purpose. You informed me that 
the United States Government has been desirous of employing the agency 
of the Eastern Telegraph Company for the conveyance of their messages, 
but that the company had been compelled to refuse their application by an 
intimation from the Spanish Government that the concessions of the com- 
pany would be forfeited if they assented to it. I have consulted the lord 
chancellor and the attorney and solicitor general in respect to your excel- 
lency's communication, and regret to inform you that, as I am advised, Her 
Majesty's Government is not at liberty to comply with the proposal of the 
Government of the United States. 

I have, etc., Salisbury. 

(Foreign Relations U. S., 1898, p. 976.) 

If consent by the neutral in time of war to the laying 
of a new cable between belligerent and neutral territory 
would be regarded as contrary to neutrality, the use for 
warlike purposes of one already laid would be open to 

Carriage of, military dispatches. — It may be said that 
the general character of the telegraphic service must be 
such as to give the neutral some reasonable ground for 
refusing to receive the dispatch in question or any other 
dispatch for transmission. 

There has been much discussion in regard to the car- 
riage of military dispatches by neutral ships, and it is 
generally held an act which renders the ship liable to 


Speaking of the general subject of carriage of dispatches 
by neutral ships Hall says : 

Despatches not being necessarily noxious, a neutral carrier is not neces - 
sarily exposed to a penalty for having made a specific bargain to carry them. 
He renders himself liable to it only when there is reasonable ground for 
belief that he is aware of their connection with purposes of war. As the 
bearer of letters can not be assumed to be acquainted with their contents, 
the broad external fact of their destination is taken as the test of their 
character, and consequently as the main ground for fixing him with or 
exonerating him from responsibility. Two classes of despatches are in this 
manner distinctly marked. Those which are sent from accredited diplo- 
matic or consular agents residing in a neutral country to their government 
at home, or inversely, are not presumably written with a belligerent object, 
the proper function of such agents being to keep up relations between their 
own and the neutral state. The despatches are themselves exempt from 
seizure, on the ground that their transmission is as important in the interests 
of the neutral as of the belligerent country: and to carry them therefore is 
an innocent act. Those on the other hand which are addressed to persons 
in the military service of the belligerent, or to his unaccredited agents in 
a neutral state, may be presumed to have reference to the war, and the 
neutral is bound to act on the presumption. If therefore they are found, 
when dispovered in his custody, to be written with a belligerent purpose, 
it is not open to him to plead ignorance of their precise contents; he is 
exonerated by nothing less than ignorance of the fact that they are in his 
possession or of the quality of the person to whom they are addressed. 
(Hall, International Law, 5th ed., p. 675.) 

The service rendered by the means of the telegraph 
may be vastly more important for the issue of the war 
than any service through the transmission of dispatches 
by ships or messengers. The element of time, so vital in 
military operations, is practically eliminated by the use 
of the telegraph in communication. 

In the general operations of war the present network of 
cable and telegraph lines furnishes, if allowed to be used 
freely for military purposes, means of information far 
more effective than any system of scouts in making 
known hostile movements and in anticipating the enemy. 

Use of cables during Spanish- American war of 1898. — 
The cables from neutral points during the Spanish- Ameri- 
can" war in 1898 both furnished information and trans- 
mitted military dispatches to the United States, indeed 
the cables did much in the way of furnishing information 
which the scouting vessels were unable to obtain. The 


telegraph also furnished the general information in regard 
to movements of the forces. 

There were but few instances in which any objection 
was offered by neutral authorities to entire freedom of 
use of cable and telegraph lines. 

That the consular and other representatives will be 
expected to take advantage of telegraphic communica- 
tion for warlike purposes is evident from such instructions 
as were issued by the United States in 1898: 


^Yashington, April 15. J 898. 
To the consular officers of tin United States: 

Gentlemen: You are hereby instructed to keep a sharp lookout for the 
arrival and departure of Spanish war ships or other suspicious vessels that 
may possibly be fitting out as privateers, and to telegraph at once to the 
Department full information in the matter when in your discretion it seems 
of sufficient importance. In the case of suspected privateers you will also 
inform the diplomatic representative of. the United States, if there be one in 
your country, in order that he can make proper representations to the 
Government, with a view of preventing the vessel's departure, if possible. 

If there be no diplomatic representative in the country where you are 
stationed or if you be in a colonial dependency, like representations should 
at once be made through the consul-general, if there be one, or if not, by 
you directly to the local authority. You will also be alert to catch anything 
that will be of interest or value in case hostilities begin, and keep the Depart- 
ment fully advised. 

All consuls will be expected to remain at their posts during the continu- 
ance of the present conditions, and leaves of absence will only be granted 
in very exceptional cases and for reasons of the greatest urgency. 
Respectfully, yours, 

William R. Day, 
Assistant Secretary. 

(Foreign Relations, U. S., 1898, p. 1169.) 

Attitude oj foreign governments. — Apparently, as tele- 
graphic communication was not closed, the sending of 
telegrams in regard to the war w r as not regarded as the 
use of a port "for any warlike purpose." 

The government notice issued from the office of the 
colonial secretary in Jamaica, April 23, 1898, regarding 
the Spanish- American war states that — 

During the continuance of the present state of war, all ships of war of 
either belligerent are prohibited from making use of any port or roadstead 
in the United Kingdom, the Isle of Man, or the Channel Islands, or in any^of 


Her Majesty's colonies or foreign possessions or dependencies, or of any 
waters subject to the territorial jurisdiction of the British Crown, as a 
station or place of resort for any warlike purpose, or for the purpose of 
obtaining any facilities for warlike equipment. 

The Spanish Red Book of 1898, containing the diplo- 
matic negotiations of that State during the Spanish- 
American war, contains many references to the matter 
of regulation of telegraphic communication, particularly 
by means of submarine cables. The Spanish authorities 
demanded that the use of the cable between Mole St. 
Nicholas and Santiago be suspended so soon as Santiago 
should be occupied by American troops. The company 
claimed that it could not do otherwise than affirm that 
its continued action was under vis major (communications 
No. 59 and 65). Other protests were entered in regard 
to the use of cables touching neutral points, but few 
definite conclusions were reached. 

It is evident that the general opinion in 1898 was that 
messages in regard to the war could be received and 
transmitted from neutral points in the absence of express 
prohibition. The representative of one of the belliger- 
ents was forbidden to telegraph the arrival of the Oregon at 
the Barbadoes. The authorities, however, learning that 
the representative of the other belligerent had informed 
his Government of the arrival, allowed like privileges to 

At other points telegrams were subjected to delay. In 
other cases more specific action was taken. 

Portugal took definite action to secure the telegraphic 
service of that country against violation of neutrality in 
1898 by discontinuing a portion of the service. The 
following is the announcement 

Direction of the Telegraphic and Postal Services, 

Department of Telegraphs.' 
It is announced by superior order that at the semaphoric stations on the 
Continent, the Azores, and Madeira the telegraphic sea-notice service has 
been discontinued (to which reference is made in articles 274, 275, 276, 277, 
and 278 of the regulations relative to telegraphic correspondence of Decem- 
ber 10, 1892) as regards that portion of it which relates to the appearance, 
entrance, and departure of war vessels of all nationalities; but the other 
semaphoric services mentioned in articles 265 to 273 of the said regulations, 


and in articles 62 and 63 of the international telegraphic regulations 
(Budapest revision), will be continued. 

Direction of the telegraphic and postal services, April 27, 1898. 

For the director-general of posts and telegraphs. 

Alfredo Perefra. 

(Foreign Relations of U. S., 1898, p. 895.) 

The Publication for the Danish West India Islands in 
the Spanish- American war of 1898 says: 

Furthermore, dispatches from or to any of the governmental authori- 
ties of any of the belligerent powers are liable to be considered as contraband 
of war, which it is forbidden to carry. 

If it is forbidden to carry such dispatches on board 
neutral ships, it might be even more reasonable to pro- 
hibit their transmission by the more expeditious means 
of the telegraph; for the neutral alone can guard against 
the transmission of hostile dispatches by telegraph except 
so far as submarine or other lines are liable to interrup- 
tion by the belligerents. The belligerent can not guard 
against such action as effectively as in transportation of 
dispatches by ship. 

Lies particuliers, ressortissant a un Etat neutre, qui expedient de la 
contrebande de guerre, le font a l'insu de leur gouvernement, et celui-ci 
ne peut etre responsable d'actes qu'il a ignores. La situation n'est plus 
la meme quand il s'agit de l'emploi des cables. Dans la plupart des pays, 
le telegraphe constitue un service public et chaque Etat, en concedant le 
droit d'atterrissement a des Compagnies privees, leur impose des obliga- 
tions speciales, notamment celle de ne pouvoir transmettre de correspon- 
dances que par l'intennediaire de ses bureaux. L'Etat, auquel les articles 
7 et 8 de la convention de Saint-Petersbourg accordent un droit de controle 
sur le service international, a done le devoir de surveiller les telegrammes; 
il doit s'abstenir de transmettre ou de* delivrer les depeches qui lui parai- 
traeint contraires a l'impartialite qui doit regir ses relations avec les 
belligerants. En agissant autrement, il donne une aide indirecte a l'un 
des belligerants et sa conduite Justine des mesures de rigueur contre le cable. 

L'Etat neutre devrait meme, pour faire connaitre aux particuliers et 
aux autres Etats son intention de ne favoriser par ce moyen aucun des 
belligerants, inserer dans sa declaration de neutralite des dispositions 
semblables a celles qui furent edictees par le Bresil en 1898. 

(F. Rey in Revue Generate de Droit International Public, 1901, page 

By the fifth section of the neutrality proclamation of 
Brazil in 1898: 


It is prohibited citizens or aliens residing in Brazil to announce by tele- 
graph the departure or near arrival of any ship, merchant or war, of the 
belligerents, or to give to them any orders, instructions, or warnings, with 
the purpose of prejudicing the enemy. 

This position implies that the telegraph lines can be 
used only for innocent purposes. It is doubtful, how- 
ever, whether this prohibition as worded would cover 
a message sent by the commander of a belligerent war 

The inference would certainly be that a cipher message 
presented by a naval officer for transmission from a neu- 
tral port to his home government would be military in 
its nature. Even in the absence of statement by the 
neutral, by proclamation or otherwise, in regard to the 
use of the telegraph by the belligerents, it would be 
entirely proper for a neutral to forbid such use as being 
of the nature of unneutral service which would probably 
lay the means of the service open to interruption by the 
other belligerent, and this with just cause. 

Conclusion. — The action of the neutral authorities 
would be correct and justly within their rights. Hence 
the protest of the commander in the first instance need 
not be entertained by the neutral. 

(b) Government censorship. — The refusal of the neutral 
authorities to allow the transmission of an openly worded 
message unless allowed to reword the message without 
materially changing its apparent meaning, and the claim 
of the neutral authorities to the right to refuse to trans- 
mit any portions of the message, provided they give notice 
to the commander what portions of the message will not 
be transmitted, is next brought under consideration. 

It has been granted that the refusal of the neutral to 
receive a dispatch apparently military in character and 
in cipher is clearly within the rights of the neutral. 

It is not difficult to understand that an openly worded 
dispatch apparently innocent upon its face, when read 
in accordance with a prearranged code, may be in reality 
a cipher dispatch, and it is against such a contingency 
that the neutral authorities seem to be guarding. The 
protest of the commander against the rewording of the 


dispatch would be in evident support of the neutral view. 
Under such circumstances the position of the neutral 
authorities is clearly within their right. 

The refusal to transmit portions of the message raises 
the question of the right of the authorities to make 
changes in a message received for transmission from the 
representative of a state. Such action, without previous 
notice and consent of the commander, might make 
changes in the intent of the communication of such nature 
as to distinctly injure his cause. 

As even entry to the neutral port is a privilege and 
not a right, and as any commercial transaction with 
those upon the shore is a privilege also, it is entirely 
within the rights of the neutral to regulate this commu- 

Conclusion. — Accordingly, the neutral authorities have 
full right to prohibit the transmission of any or all mes- 
sages, and unless the neutral authorities and the com- 
mander of the belligerent ship can agree upon the form 
of the message, the neutral authorities may even abso- 
lute! v refuse to allow its transmission. 

The position of State Y is in all cases correct, though 
State Y would have no authority to mutilate or change 
a message already received. 

Situation VII. 

During the war between the United States and State 
X, the senior officer of the United States fleet in a certain 
region discovers that newspaper correspondents are send- 
ing messages by wireless telegraphy. He has not author- 
ized the use of the wireless telegraph by the newspaper 
correspondents, and its use may interfere with his military 

(a) What treatment should these correspondents 
receive ? 

(b) Granting that newspaper correspondents will be 
allowed in the field of operations', what regulations should 
govern them? 


(a) In the absence of any prohibition the newspaper 
correspondents are entitled to use such legitimate means 
as the wireless telegraph for the transmission of news 
and are entitled to the ordinary treatment given to news- 
paper correspondents. 

(b) If newspaper correspondents are allowed within 
the field of operations, the correspondents and the agen- 
cies of transmission of news should be under the absolute 
control of the commanding officer in that military area. 

(For general scope of regulations see p. 115.) 


(a) What treatment should the correspondents de- 
scribed in this situation receive? 

Russian Declaration, 1904. — During the Russo-Japanese 
war in 1904, in April, there was issued by Admiral Alexieff 
a circular in regard to the use of new means of communica- 
tion by newspaper correspondents. This was particularly 
aimed at certain neutral press boats which were using 
wireless telegraph in transmitting news of the war. The 
circular handed by the Russian diplomatic agents to the 
foreign offices of various states was reported as follows: 

" I am instructed by my Government, in order that there 
may be no misunderstanding, to inform your excellency 



that the lieutenant of His Imperial Majesty in the Far East 
has just made the following declaration: In case neutral 
vessels, having on board correspondents who may com- 
municate news to the enemy by means of improved ap- 
paratus not yet provided for by existing conventions, 
should be arrested off Kwangtung, or within the zone of 
operations of the Russian fleet, such correspondents shall 
be regarded as spies, and the vessels provided with such 
apparatus shall be seized as lawful prizes." 

It should be observed that the Russian Government 
merely informs other governments that Admiral Alexieff 
has issued this Declaration. The Russian Government 
does not assert that it proposes permanently to support 
the position taken b} T its lieutenant. 

The French text of the Declaration was as follows: 

Dans le cas ou des vapeurs neutres, ayant A bord des correspondants 
qui communiqueraient a l'ennemi des nouvelles de guerre au moyen 
d'appareils perfectionni'S nVtant pas encore prevus par les conventions 
existantes — seraient arret*' s aupres de la cote du Kuantoung ou dans la 
zone des operations de la flotte russe — les correspondants seront envisages 
comme espions et les vapeurs, munis d'appareils de telegraphie sans fil — 
saisis en qualite de prise de guerre. 

Treatment oj vessels using wireless telegraph . — Considering 
the provisions of this circular in the reverse order of their 
statement, the first matter is the treatment of the vessels. 
The implication is that the equipment with wireless tele- 
graphic outfit by a neutral vessel " within the zone of 
operations" is sufficient ground for the seizure of the vessel 
as lawful prize. If this means that the ordinary rules of 
prize courts hold for such a vessel, it is difficult to under- 
stand how an adjudication can be made. If the circular 
means that such vessels, when actually engaged in com- 
municating information of a military character to the 
enemy, are guilty of unneutral service and are liable to 
the penalties consequent upon such service, the provision 
is clear, for such would be the offense, and the regular 
penalty would be confiscation of vessel and equipment. 

The attempt to bring under the rules of contraband 
and violation of blockade many forms of action in time of 
war which have only a remote relation to either has led 
to confusion, which shows the need of further elucidation 


of the principles of unneutral service which involves actual 
participation by service in behalf of the enemy. 

Spies. — The treatment of the correspondents using 
wireless telegraphy as spies raises further questions. 

The treatment of a captured spy is usually summary 
and extreme, and while article 30 of the Hague Conven- 
tion respecting the Laws and Customs of War on Land 
prescribes that " a Spy taken in the act can not be punished 
without previous trial/' yet, the penalty is usually extreme. 
If, then, the proclamation of the Russian admiral is admit- 
ted as in accord with practice, the position of a newspaper 
correspondent would be exceedingly dangerous when 
news is communicated to the enemy, since he might become 
liable to treatment as a spy. 

Both Russia and Japan are, however, parties to the 
above-mentioned convention, which defines the term " spy, " 
in article 29, as follows: 

An individual can only be considered a spy if, acting clandestinely, or 
on false pretenses, he obtains, or seeks to obtain, information in the zone 
of operations of a belligerent, with the intention of communicating it to 
the hostile party. 

Thus, soldiers not in disguise, who have penetrated into the zone of 
operations of a hostile army to obtain information, are not considered 
as spies. Similarly the following are not considered as spies: Soldiers or 
civilians, carrying out their mission openly, charged with the delivery of 
dispatches destined either for their own army or for that of the enemy. To 
this class belong likewise individuals sent in balloons to deliver dispathes, 
and generally to maintain communication between the various parts of 
an army or a territory. 

This rule is in accord with general practice, both for 
land and naval warfare. There is no basis upon which 
an officer in the military service can set up a new definition. 
The fact that a news correspondent uses in transmitting 
communications "improved apparatus not yet provided 
for by existing conventions" does not constitute him a 
spy. It is not the means of communication but the nature 
of the act which determines the status of a spy. The 
nature of the act is clearly set forth in the Hague Conven- 
tion above quoted, and any person, whether newspaper 
correspondent or other, guilty of such an act, whatever 
the means used, is a spy without further proclamation or 


Conclusion as to Russian declaration. — The conclusion 
would be, therefore, that a vessel is not liable to seizure 
as prize merely from the fact of having on board " improved 
apparatus" for communicating news, and that correspond- 
ents using such "improved apparatus'' are not liable from 
the simple fact of its use to treatment as spies. 

On the other hand, newspaper correspondents who act 
in such maimer as to bring themselves under the definition 
of spies are liable to treatment as such without special 
notification in the same manner as any other person. The 
vessel concerned in transmitting such information, together 
with its equipment for such purpose, is undoubtedly liable 
to the penalty of unneutral service, which is confiscation. 

It is not possible to defend the position assumed in the 
Russian circular in its present extreme form. As Kebedgy 

L'emploi de la telegraphie sans fil par des corrcspondants de journaux 
a, la guerre a pose une question qui merite d'etre etudiee de pres. Mais 
nous ne pensons pas qu'on pourra jamais approuver la decision de traiter 
ces correspondants comme des espions. (Revue de Droit International. 
VI, p. 451.) 

The manifest intent of the circular to control the action 
of press agents and press boats within the zone of hostile 
operations is, however, proper in view of the danger to 
the belligerent which may follow unrestricted communi- 

Control of m uspaper corespondents. — Various regulations 
have from time to time been issued which affect newspaper 

The Hague Convention respecting the Laws and Cus- 
toms on Land, provides: 

Aeticle XIII. Individuals who follow an army without directly belong- 
ing to it, such as newspaper correspondents and reporters, sutlers, con- 
tractors, who fall into the enemy's hands, and whom the latter think fit 
to detain, have a right to be treated as prisoners of war, provided they 
can produce a certificate from the military authorities of the army they 
were accompamMng. 

Instructions for the Government of Armies of the L nited 
States in the Field prvoide: 

Ajrticle 50. Moreover, citizens who accompany an army for whatever 
purpose, such as sutlers, editors, or reporters of journals, or contractors, 
if captured may be made prisoners of war and be detained as such. 


Article 34 of the Brussels Rules of Military Warfare, 
1874, provides that — 

Persons in the vicinity of armies, but who do not directly form part of 
them, such as correspondents, newspaper reporters, vivandiers, con- 
tractors, etc., may also be made prisoners of war. 

These persons should, however, be furnished with a permit, issued by a 
competent authority, as well as with a certificate of identity. 

and article 23 defines prisoners of war as " lawful and 
disarmed enemies." 

The Oxford Manual of the Laws of War on Land of 1880 
gave to such persons a more lenient treatment, as is shown 
in article 22 : 

Persons who follow an army without forming a part of it, such as corre- 
spondents of newspapers, sutlers, contractors, etc., on falling into the power 
of the enemy, can only be detained for so long a time as may be required 
by military necessity. 

The rules of the Hague Convention of 1899 do not 
define prisoners of war, but do provide for their treat- 
ment, and provide that newspaper correspondents and 
reporters shall have like treatment when captured. 

Certification of newspaper correspondents. — The implica- 
tion of the last clause of Article XIII, viz, " provided they 
(newspaper correspondents, etc.) can produce a certifi- 
cate from the military authorities of the army they were 
accompanying," is that in the future such correspond- 
ents are to be regularly certified by the commander of 
the forces with which they for the time being are. 

According to the Hague Convention, the right to grant 
certificates to correspondents is in the hands of the com- 
mander. The commander, in the absence of orders to the 
contrary, would be authorized to prescribe the regula- 
tions under which certificates would be granted and by 
implication would be able to exclude from the field of 
his authority those not properly certified. 

Further, there is implied in the right to grant the cer- 
tificate the right to withhold, which would be a means by 
w T hich the character of the correspondents could be in a 
measure controlled: 

There would also be implied the right to make such 
rules for the government of correspondents as might at 
the time seem good. 


The rule of the Hague Convention would also seem to 
indicate that persons not having a proper certificate 
would not necessarily be entitled to the treatment of a 
prisoner of war. If this be the case, the military com- 
mander would properly insist that correspondents should, 
if with the forces, be provided with proper certificates. 

A plan making a certificate a compulsory prerequisite 
for accompanying military forces would accord with the 
spirit of the Hague Convention, and would put the con- 
trol of correspondents in the hands of the commander 
of the forces. 

The rules of the Hague Convention were drawn with 
reference to warfare upon land, and have been accepted 
by practically, all the states of the world. The United 
States authorities would, therefore, be fully justified in 
demanding that those correspondents only should be 
allowed with its army who were properly certified. 

If it is generally accepted that the military authorities 
of forces on land should control correspondents, it is even 
more important that such control should be extended to 
correspondents in the neighborhood of naval operations, 
for the disclosure of movements of a fleet or of a war ves- 
sel may be even more serious than a similar disclosure in 
regard to forces upon land. 

Right-minded newspaper men ask for fair treatment 
only and would regard regulations which would give 
equality of opportunity to all correspondents as in every 
way desirable; otherwise they would not be fit persons 
to accompany a military force on sea or land. 

The control should not, of course, be limited to the cor- 
respondents and reporters alone, but should be extended 
to the whole personnel and all agencies concerned in 
gathering and forwarding news of the war. 

Such control of the personnel and agencies for gather- 
ing and forwarding news could be justly demanded, even 
the Red Cross personnel and agencies must submit to con- 
trol of the commanding military authority. 

The naval commander has a right to control hospital 
ships according to the Hague Convention, 1899, for the 


Adaptation to Maritime Warfare of the Principles of the 
Geneva Convention, which provide that hospital ships — 

must not in any way hamper the movements of the combatants. 

During and after an engagement they will act at their own risk and peril. 

The belligerents. will have the right to control and visit them; they can 
refuse to help them, order them off, make them take a certain course, and 
put a commissioner on board; they can even detain them if important cir- 
cumstances require it. 

As far as possible, the belligerents shall inscribe in the sailing papers of 
the hospital ships the orders they give them. 

The naval commander has full right to demand equal 
control of correspondents, press boats, dispatch boats, 
and the like, whose mission may be from its nature far 
more dangerous than the mission of hospital ships to the 
success of the military plans. 

Regulations somewhat similar in spirit to those for the 
government of hospital ships and personnel would give 
to the commander sufficient control without unduly lim- 
iting the freedom of action of press boats and press 

It is on its face far more necessary for a state that its 
commanders should be unhampered in the prosecution of 
their military operations in order that they may bring 
them to a successful issue than that the people of a state 
should know from hour to hour exactly what the military 
force is doing. This is what the enemy desires particu- 
larly to know. 

War is not ordinarily undertaken to give an opportunity 
for the display of journalistic enterprise, and no com- 
mander would be justified in unnecessarily sacrificing 
resources or men to such enterprise. This being axio- 
matic, it may also be said that the people are entitled to 
such knowledge of the course of the war as may not inter- 
fere with military operations. The commanding officer 
in a given area is the best judge as to what information 
shall be published. 

This natural conclusion leads to the further one that 
the commanding officer must control the news sent from 
the field of operations. This can be done by the common 
means of censorship of dispatches and news. This cen- 
sorship may extend to the entire prohibition of the send- 


ing of any dispatches or to the determination of what shall 
be sent and of the form in which it shall be sent. 

From what has been said, it is evident that newspaper 
correspondents, though using wireless telegraphy, are not 
therefore spies. If guilty of acts of spying, then they are 
of course liable to the consequences. The simple sending 
of messages in regard to the war does not in itself consti- 
tute spying. It is an act commercial rather than mil- 
itary in its nature. 

After newspaper correspondents have been forbidden 
within a given area or alter they have been notified not 
to communicate any news in regard to military affairs, 
the sending of dispatches would constitute an offense 
with which the commanding officer would have full power 
to deal. 

Conclusion. — "Without previous notice in regard to or 
regulation of the agencies by which newspaper corre- 
spondents may send news, it is presumed that all agencies 
which may not involve perfidy are legitimate. As the 
correspondents in this instance had not disobeyed any 
regulation, but had merely, as would be expected, used 
the most modern means of communication, they are not 
therefore liable to any penalty. It would be presumed 
that the agency of the wireless telegraph would be open 
to them in absence of prohibition and unless forbidden 
no authorization would be necessary. 

The correspondents would therefore be acting in a 
proper manner and would not be liable to any penalty 
for the use of the agency of the wireless 'telegraph when 
such use is not prohibited. 

This conclusion shows the emphatic necessity of the 
regulation of news gathering and transmission on and 
from the field of military operations. 

(b) Granting that newspaper correspondents will be 
allowed in the field of operations, what regulations should 
govern them? 

Japanese regulations, 190^. — The Regulations for War 
Correspondents issued by the Japanese Government to 
hold during the Russo-Japanese war accord with the 
principles set forth above. These regulations are as fol- 



Article 1. Newspaper correspondents who wish to follow the army are 
required to make application to the department of war, together with a 
sketch of their antecedents and a document of personal guaranty signed by 
the proprietor of the newspaper to which they belong. 

In case of foreign correspondents, their application shall be sent through 
their respective ministers or consuls and the department of foreign affairs. 

Foreign correspondents need only mention in their application the name 
of the newspaper to which they belong and dispense altogether with the 
presentation of sketches of antecedents and papers of personal guaranty. 

Art. 2. The applicant must have been engaged in journalistic work for 
not less than a year as a member of a newspaper staff. 

Art. 3. Foreign correspondents who can not understand the Japanese 
language may take with them one interpreter each into the field. 

Any correspondent requiring an interpreter may engage one himself and 
present an application on the interpreter's behalf, accompanied by a paper 
of personal guaranty for the same. 

Art. 4. A foreign correspondent, in addition to his interpreter, may 
engage one or more servants when circumstances demand it, the procedure 
of engagement to be in accordance with the foregoing article. 

Art. 5. The authorities, when they consider it necessary, may cause the 
selection of one person to act as joint correspondent for several newspapers. 

Art. 6. In case any person is allowed to accompany the Japanese forces 
an official permit shall be given him. 

Art. 7. The applicants allowed as stated shall be attached to a "koto 
shireibu" (higher commanding officer). 

Art. 8. Correspondents shall always wear foreign clothes, and to their 
left arms shall be attached a white band, measuring about 2 inches in width, 
on which the name of the newspaper offices which they represent shall be 
written in Japanese with red ink. 

Art. 9. Correspondents shall always carry with them the official permit, 
and shall, when asked, show it to officers and officials belonging to the 
Japanese forces. 

Art. 10. Correspondents shall always observe the rules and orders to 
be issued by the koto shireibu so long as they remain with the Japanese 
forces. In case they disregard the above rules and orders, the authorities 
of the koto shireibu may refuse to allow them to accompany the Japanese 

Art. 1 1 . The war correspondent will not be allowed to dispatch his com- 
munications (whether they be correspondence for publication or private 
letters or telegrams, etc.) until after their examination by the officer 
appointed for the purpose by the higher commanding officer. No com- 
munication containing cipher or symbols will be permitted to be dispatched. 

Art. 12. The army and its officers will accord, as far as circumstances 
permit, to the war correspondent suitable treatment and facilities, and, 
when in the field and in case of necessity, give him food, etc., or, at his 
request, give him transportation in vessels or vehicles. 

18239—05 8 


Art. 13. In case the war correspondent is guilty of violation of the 
criminal law, military criminal law, law for the preservation of military 
secrets, etc., he may be adjudged and punished by the court-martial 
according to the military penal code. 

Art. 14. Article 6 to 13 are applicable to interpreters and servants. 
(Daily Consular Reports, 1904, No. 1912, p. 2.) 

Naval regulations. — The regulations particularly apply- 
ing to naval war correspondents are: 


Article 1. A newspaper war correspondent desirous to accompany 
the navy shall make application to the naval staff, imperial headquarters, 
for permission. 

Art. 2. A newspaper war correspondent shall obey all orders of the 
commanding officer of the fleet which he accompanies. 

Art. 3. No communications concerning war shall be sent until after they 
have been examined by officers nominated for the purpose by the com- 
manding officer of the fleet which he accompanies. 

Art. 4. The commanding officer of the fleet may cancel the permission 
granted to a newspaper war correspondent. 

Art. 5 Necessary regulations concerning the treatment of a newspaper 
war correspondent shall be fixed by the commanding officer of the fleet. 

Art. 6. A newspaper war correspondent shall wear European dress and 
put on a low round-shaped cap, with a visor, and attach on his left arm a 
strip of white woolen cloth 1 sun (1.193 inches) wide, with the characters 
* * * (paper correspondent) on it. 

Art. 7. A newspaper correspondent shall always earn' his permit, men- 
tioned in article 1, with him, and shall show it when asked by army or navy 
authorities. (Daily Consular Reports, 1904, No. 1912, p. 4.) 

Effect of Japanese rules. — The effective control of the 
news relating to military movements during the Russo- 
Japanese war by the Japanese authorities fully justifies 
the rules enunciated by Japan. It is doubtless true that 
some of the correspondents have found it hard not to be 
upon the field of operations, but war is not undertaken 
for the sake of gratifying the curiosity of the public 
which reads the accounts of battles and military move- 
ments. Provided the correspondents have had fair 
treatment, there is no reason for complaint. The state 
must determine the general policy in regard to war cor- 
respondents, and the commanding officer in a given region 
must determine the particular application of this policy. 

Russian regulations. — The following, according to the 


Agence tel'graphigue russe, are the regulations for the 
conduct of foreign correspondents allowed within the 
field of operations: 

Les Strangers doivent produire une recommandation de leur gouverne- 
ment aupres du ministere russe des affaires etrangeres. Chaque corre- 
spondant doit s'engager, par ecrit, A ne propager aucune nouvelle contenant 
des critiques, des dispositions ou des personnes, a representer les faits 
conformement a la verite et a supprimer les nouvelles qui ne peuvent se 
controler. La violation de ces dispositions, les indiscretions, le manque 
de tact entrainent des observations, et, suivant les cas, l'eloignement du 
theatre de la guerre. Pour tous les correspondants sans exception, l'entree 
de l'amiraute, les docks et autres installations de la marine, ainsi que 
l'emploi de vapeurs sur les rades de Port Arthur et de Vladivostock, sont 
interdits. Les correspondants doivent s'engager a ne pas demander 
d'exceptions a ces dispositions. A leur arrivee sur le theatre des operations, 
ils doivent se rendre au quartier general et prouver leur identite par une 
photographie ; l'etat-major general les dirige alors sur l'etat-major dont 
ils dependent. lis sont responsables de leurs domestiques. Comme 
insigne, ils doivent porter un brassard au bras gauche. Les depeches 
chiffrees sont interdites. La censure des informations a lieu au quartier 
general, aupres de l'etat-major de l'arm'e de Mandchourie, et a l'adminis- 
tration militaire de Kharbin, Niou-Chouang, Port Arthur et Vladivostock. 
(Quoted in Revue de Droit International, VI, p. 448.) 

General scope oj necessary regulations. — These rules 
should be such as — 

1. To place the correspondents under the control of 
the naval commander. 

2. To place the control of the news sent in the hands of 

3. To enable the commander to prohibit absolutely the 
sending of any information from the field of operations. 

4. To place the agencies by which news are sent 
under control of the commander. 

5. To enable the commander to inflict penalties for 
violations of any regulations he may make. 

The commander should therefore control the corre- 
spondents themselves, determine the news to be sent, or 
prohibit communications entirely, control the means of 
sending by the establishment of proper regulations and 

Conclusion. — From these conclusions it is manifest 
that correspondents must obtain a quasi-official standing, 


and in order that control may be effective, that the 
agencies by which communication is had shall also be 
official to the extent of being under absolute military 

Private, unresponsible persons or agencies would 
therefore be forbidden within the field of operations or 
the strategic area. 

Note.— Since the above was printed, and too late for further reference, an article 
by Professor T. S. Woolsey supporting many of the positions herein taken has 
appeared in the Yale Law Journal for March, 190?, p. 247. 

Situation VIII. 

During the war between the United States and State 
X, two war vessels of State X are lving in the harbor 
of neutral State Y. These vessels go out of the harbor, 
beyond the jurisdiction of State Y, are damaged 
severely by war vessels of the United States, and return 
to the harbor of State Y, where they are abandoned and 
sink. The crews of these vessels are succored and re- 
ceived on board of neutral war vessels belonging to 
States A, B, and C ; which are within the port. The 
United States commander claims these crews as prisoners 
of war. 

(a) Is the claim justifiable ? 

(b) What disposition should be made of the crews if 
the commanders claim is not allowed ? 


(a) The claim of the United States commander that 
the crews are prisoners of war is not justifiable. The 
crews had at no time been within the power of the United 
States commander. 

(b) The crews should be interned or otherwise disposed 
so that they may not again take part in the war. 


(a) The United States war vessels damage two ves- 
sels of State X in battle on the high seas. These vessels 
seek refuge in the neutral port of State Y. There the 
vessels are abandoned and sink. The crews of the aban- 
doned vessels are received upon neutral war vessels of 
other States than Y, which vessels chance to be in the 
port. The United States commander then claims the 
crews of the vessels as prisoners of war. 

The first question which naturally arises is as to the 
status of the crews of the abandoned vessels of State X. 

Prisoners of war. — Are they prisoners of war? The 
definition of the term prisoner of war is fairly uniform. 



According to the Instructions for the Government of 
Armies of the United States in the Field (General Orders, 
No. 100), article 49— 

A prisoner of war is a public enemy armed or attached to the hostile 
army for active aid, who lias fallen into the hands of the captor, either fight- 
ing or wounded, on the field, or in the hospital, by individual surrender, or 
by capitulation. 

All soldiers of whatever species of arms; all men who belong to the rising 
en masse of the hostile country; all those who are attached to the army for 
its efficiency and promote directly the object of war, except such as are 
hereinafter provided for: all disabled men or officers on the field or else- 
where, if captured; all enemies who have thrown away their arms and ask 
for quarter, are prisoners of war, and as such exposed to the inconveniences 
as well as entitled to the privileges of a prisoner of war. 

The Brussels Convention of 1874, article 23, says: 

Prisoners of war are lawful and disarmed enemies. They are in the 
power of the enemy's Government, but not of the individuals or of the corps 
who made them prisoners. 

They should be treated with humanity. 

Even 7 act of insubordination authorizes the necessary measures of 
severity to be taken with regard to them. 

All their personal effects, except their arms, are considered to be their own 

According to the Oxford Manual of the Laws of War 
on Land, 1880: 

Art. 21. Persons forming part of the armed forces of belligerents, on fall- 
ing into the power of the enemy, must be treated as prisoners of war, con- 
formably to article 61, and those following it. 

This rule applies to messengers openly carrying official dispatches, and to 
civil aeronauts employed to observe the enemy or to keep up communication 
between different parts of the army or territory. 

The Hague Convention, 1899, provides that — 

Art. 3. The armed forces of the belligerent parties may consist of com- 
batants and noncombatants. In case of capture by the enemy both have 
a right to be treated as prisoners of war. 

Reasons why crews are not prisoners of war. — It will be 
seen from the Situation under discussion that the provi- 
sions requisite for the making of the crews prisoners of 
war had not been met in the case of the crews of the 
vessels of State X. 

The single ground of failure to capture therefore 
would be sufficient to vitiate the claim of the commander. 


There are various other reasons why the claim of the 
commander is not correct. (1) The enemy's ships must 
come within the power of the United States commander 
before they can be made prisoners of war. In this Situ- 
ation while the enemy's ships are damaged they had not 
come under the power of the United States commander, 
and the crews had not, therefore, been made prisoners 
of war. At no time had the commander had the power 
to say what should be the disposition of the crews. 
Before the crews had deserted the vessels they had been 
under their own flag, and this was still the case after 
they had left the vessel, provided they had left in their 
own boats. 

(2) On passing within the limits of neutral State Y, 
the field of belligerent action was passed. The only 
relations which the vessels of State X could maintain in 
the port would be peaceful relations. Hence the com- 
mander could not in port take prisoners of war without 
violating the neutrality of State' Y. 

(3) On going on board the war vessels of States A, B, 
and C, the crews of the vessels of State X passed within 
the jurisdiction of those States, and neither neutral State 
Y nor the United States could presume to exercise juris- 
diction over those vessels because of their reception. 

Xeutral State Y would not interfere, because the crews 
of the vessels of State X were apparently under their 
own flag until they had passed under the flags of A, B, 
and C. Even if the crews had been compelled to enter 
the water without boats, and had been obliged to swim 
to the vessels of A, B, and C, though it might be held 
technically that while in the water and not under the 
organized control of their own officers the crews were 
under the jurisdiction of State Y because State Y was 
sovereign over the harbor waters, yet when they passed 
on board the war vessels of States A, B, and C, the crews 
passed out of the jurisdiction of State Y. 

Public vessels in foreign ports.— Halleck, speaking of 
the general privileges of public vessels in foreign ports, 
says : 

Where there are no express prohibitions, the .ports of one state are con- 
sidered as open to the public armed and commissioned vessels of every other 


nation with whom it is at peace. Such ships are exempt from the jurisdic- 
tion of the local tribunals and authorities, whether they enter the ports 
under express permission, stipulated by treaty, or a permission implied from 
the absence of prohibition. This exemption, which is termed "extra- 
territoriality, ' ' extends not only to the belligerent ships of war, privateers, 
and the prizes of either, who seek a temporary refuge in neutral waters from 
the casualties of the sea and war, but also to prisoners of war on board any 
prize or public vessel of her captor. Such vessels, in the command of a 
public officer, possess in the ports of a neutral the rights of extra-territorial- 
ity, and are not subject to the local jurisdiction. But whatever may be the 
nature and extent of the exemption of the public or private vessels of one 
state, from the local jurisdiction in the ports of another, it is evident that 
this exemption, whether express or implied, can never be construed to 
justify acts of hostility committed by such vessel, her officers and crew, in 
violation of the law of nations against the security of the state in whose ports 
she is received, or to exclude the local tribunals and authorities from resort- 
ing to such measures of self-defense as the security of the state may require. 
Therefore a public vessel would not hesitate to give up to the local authori- 
ties a person accused of a serious crime who might come aboard her, and it is 
probable that she might even do so in the case of a person evading con- 
scription. (Halleck's Internat. Law, vol. 1, p. 215. ) 

As neutral State Y would not presume to exercise 
jurisdiction over the war vessels of States A, B, and C, 
under the circumstances, much less could the commander 
of a United States war vessel in a neutral port exercise 
any authority or even claim as prisoners the crews of the 
vessels of State X, which had never been in his power. 
This case also differs from a case in which the shipwrecked 
or wounded are picked up upon the scene of a naval 
engagement. These crews in the harbor of State Y are 
removed from the exercise of authority on the part of the 
United States commander: (1) by the fact that the succor 
was afforded in a neutral port, and (2) by the fact that the 
succor was afforded upon neutral vessels of other states 
temporarily within the neutral port of Y. 

Conclusion. — The claim of the United States com- 
mander that the rescued crews should be delivered to him 
as prisoners of war could not be sustained. 

(b) There next arises the question of the disposition of 
these crews which have gone on board the war vessels of 
States A, B, and C. 

Captain Mohan's 'position. — Captain Mahan, in a paper 
before the peace conference at The Hague, on June 20, 


1899, argued that some definite provisions should be 
made for crews shipwrecked in battle. He said : 

* * * On a field of naval battle the ships are constantly in movement ; 
not merely the movement of a land battle, but a movement of progress, of 
translation from place to place more or less rapid. The scene is here one 
moment; a half hour later it may be five miles distant. In such a battle it 
happens that a ship sinks: her crew become naujrages; the place of action 
shifts; it is no longer where these men are struggling for life; the light 
cruisers of their own side come to help, but they are not enough; the hospital 
ships with the neutral flag come to help; neutral ships other than hospital 
also arrive; a certain number of combattants nauf rages are saved on board 
neutral ships. To which belligerent do these men belong? It may happen 
that the neutral vessel, hospital or otherwise, has been with the fleet opposed 
to the sunken ship. After fulfilling her work of mercy she naturally 
returns to that fleet. The combattants naujragts fall into the power of the 
enemy, although it is quite probable that the fleet to which they belong 
may have had the advantage. 

I maintain that unless some provision is made to meet this difficulty 
much recrimination will arise. A few private seamen, more or less, a few 
sub-officers, may not matter, but it is possible that a distinguished general 
officer, or valuable officers of the lower grade may be affected. This will 
tend to bring into discredit the whole system for hospital ships; but further, 
while hospital ships, being regularly commissioned by their own govern- 
ment may be supposed to act with perfect impartiality, such presupposition 
is not permissible in the case of vessels named in Article 6. Unless the 
status of combattants naujragh saved by them is defined, the grossest 
irregularities may be expected — the notoriety of which will fully repay the 
class of men who would perpetrate them. 

As many cases may arise, all of which it is impossible to meet specifically, 
I propose the following additional articles, based upon the single general 
principle that combattants naujragh, being ipso facto combatants hors de 
combat, are incapable of serving again during the war, unless recaptured or 
until duly exchanged. 

Captain Mahan embodied bis ideas in the following 
articles, which, however, were not adopted: 

1. In the case of neutral vessels of any kind, hospital ships or others, 
being on the scene of a naval engagement, which may, as an act of humanity, 
save men in peril of drowning, from the results of the engagement, such 
neutral vessels shall not be considered as having violated their neutrality 
by that fact alone. They will, however, in so doing act at their own risk 
and peril. 

2. Men thus rescued shall not be considered under the cover of the neutral 
flag, in case a demand for their surrender is made by a ship of war of either 
belligerent. The}- are open thus to capture or to recapture. If such 
demand is made, the men so rescued must be given up, and shall then 
have the same status as though thev had not been under a neutral flag. 


3. In case no such demand is made by a belligerent ship, the men so 
rescued, having been delivered from the consequences of the fight by 
neutral interposition, are to be considered itoi's de combat, not to serve for 
the rest of the war unless duly exchanged. The Contracting Governments 
engage to prevent, as far as possible, such persons from serving until dis- 
charged. (Holls. Peace Conference at The Hague, p. 504.) 

Captain Mahan's first article is very general. It covers 
" neutral vessels of any kind, hospital or others, being 
on the scene of a naval engagement, which may, as an 
act of humanity, save men in peril of drowning from 
the results of the engagement." In the second article 
he maintains that "men thus rescued shall not be con- 
sidered under the cover of the neutral flag, in case a 
demand for their surrender is made by a ship of war of 
either belligerent." 

These provisions as he mentions would particularly 
apply to cases involving circumstances similar to those 
under which the yacht Deerhound saved men of the 
Alabama, of which Mr. Seward said to Mr. Adams in a 
letter of July 15, 1864: 

I freely admit that it is no part of a neutral's duty to assist in making cap- 
tures for a belligerent, but I maintain it to be equally clear that, so far 
from being neutrality, it is direct hostility for a stranger to intervene and 
rescue men who had been cast into the ocean in battle, and then carry them 
away from under the conqueror's guns. 

The case under consideration in this situation, how- 
ever, does not contemplate rescue by a private ship as 
in the case of the Deerhound. but by a ship of war not 
upon the scene of hostilities, but in a neutral port. The 
crews are received on board a neutral war vessel, and a 
war vessel from its very nature can not be subjected to 
the provisions of the above articles. 

Lawrence's opinion. — Lawrence, in his " War and Neu- 
trality in the Far East," page 71, which appears as this 
is written, says: 

The Chemulpo incident shows, among other things, that provision will 
have to be made in future for assistance by neutral ships of war, as well 
as by neutral hospital ships and ordinary neutral vessels. The nature of 
such provision is still open to controversy. We may hope to see the rejec- 
tion of Captain Mahan's idea that neutral rescuers should be bound to give 
up their unhurt refugees to the first belligerent war ship which demands 


them. Another project is that the neutral vessel which has gathered them 
up should report itself immediately to the belligerent commander controll- 
ing the scene of operations and take its orders from him, which would 
mean in most cases the surrender of the refugees as prisoners of war. This 
latter plan might sometimes be found difficult in practice. There have 
been cases when neither party controlled the scene after the action was over. 
The indecisive conflict between Sir Robert Calder and Villeneuve on 
July 22, 1805, is a case in point. Another instance may be taken from the 
battle of the Yalu, fought on September 17, 1894, at the close of which 
both the Japanese and the Chinese fleets left the waters in which they had 
contended. But quite apart from the fact that sometimes there may be 
no commander in control on the spot where the battle was fought, the 
principle underlying the proposals we have described seems inadmissible. 
It involves the deneutralization of humanity. If the rescued men are 
surrendered to their own side, they will again become combatants; if they 
are surrendered to the other side, they will be made prisoners of war. To 
assist in bringing about either of these consummations is surely inconsistent 
with neutrality. There remain the alternatives of " internment" — that 
is to say, keeping them in honorable detention under neutral guardianship 
for the rest of the war — or handing them over to their own friends in 
exchange for a solemn promise that they shall not serve again while hos- 
tilities continue. * * * 

We interpret the obligations of neutrality and humanity more strictly 
than our fathers, but we need an international agreement to give symmetry 
and stability to our views. When it comes to be negotiated the precedent 
of Chemulpo will undoubtedly make for a very wide right of rescue on the 
part of neutral vessels, both public and private. But we may hope it will 
not be pressed in favor of anything approaching a right of interference in 
the struggle. It is one thing to save the life of a man struggling in the 
water, quite another to help him in keeping himself and his ship out of the 
hands of the victor. 

Hague Conference Provisions. — Article VI of the " Con- 
vention Between the United States of America and 
Certain Powers for the Adaptation to Maritime Warfare 
of the Principles of the Geneva Convention of August 22, 
1864" (Hague Convention), ratified by the United States 
in 1900, provides that— 

"Neutral merchantmen, yachts, or vessels having or taking on board 
sick, wounded, or shipwrecked of the belligerents can not be captured for 
so doing, but they are liable to capture for any violation of neutrality they 
may have committed." 

Article LVII of the " Convention Between the United 
States of America and Certain Powers, With Respect to 
the Laws and Customs of War on Land ; ' (Hague Conven- 


tion), ratified by the United States in 1902, provides for 
the internment of the belligerent troops as follows: 

Article LYII. A neutral state which receives in its territory troops 
belonging to the belligerent armies shall intern them, as far as possible, 
at a distance from the theater of war. 

It can keep them in camps, and even confine them in fortresses or loca- 
tions assigned for this purpose. 

It shall decide whether officers may be left at liberty on giving their 
parole that they will not leave the neutral territory without authorization. 

Article LVIII. Failing a special Convention, the neutral State shall 
supply the interned with the food, clothing, and relief required by 

At the conclusion of peace, the expenses caused by the internment shall 
be made good. 

Article LIX. A neutral State may authorize the passage through its 
territory of wounded or sick belonging to the belligerent armies, on condi- 
tion that the trains bringing them shall carry neither combatants nor war 
material. In such case, the neutral State is bound to adopt such measures 
of safety and control as may be necessary for the purpose. 

Wounded and sick brought under these conditions into neutral territory 
by one of the belligerents, and belonging to the hostile party, must be 
guarded by the neutral State, so as to insure their not taking part again 
in the military operations. The same duty shall devolve on the neutral 
State with regard to wounded or sick of the other army who may be com- 
mitted to its care. 

Article LX. The Geneva Convention applies to sick and wounded 
interned in neutral territory. 

If the crews of the abandoned war vessels of State X 
had gone to the shore of State Y as a portion of the mili- 
tary force of State X they would have been interned 
during the remainder of the war, according to the provi- 
sions of the Hague Convention, to which most of the 
States of the world are parties; or, even if not a party to 
the convention, State Y would intern them, in accord 
with the general international practice. 

Effect of going on hoard 'public vessels. — In going on 
board of the war vessels of States A, B, and C, the crews 
of the vessels of State X practically enter the jurisdic- 
tion of States A, B, and C. Upon these war vessels of 
States A, B, and C no other State would claim any juris- 
diction unless the peace of the port or the safety of the 
State was threatened, and even then action would ordi- 
narily extend only to expelling the vessel from the port. 
Hence neither Y nor the United States would interfere. 


As the crews of the abandoned vessels have, by enter- 
ing the war vessels of States, A, B, and C, entered within 
the jurisdiction of those States, it may be presumed that 
they will observe their international obligations. It 
would not be incumbent upon the commander of the 
United States war vessel to inform the other command- 
ers as to their obligations or to make claims. He 
might with propriety confer with them in regard to the 
disposition of the crews in question and indicate the 
line of conduct that he thought to be proper. 

Chino- Japanese war of 1894-95. — During the Chino- 
Japanese war of 1894-95, certain neutral war ships res- 
cued Chinese soldiers in Korean waters. Of these acts 
Takahashi says: 

As already mentioned, the French war ship Lion brought 45 Chinese 
soldiers to Chemulpo, and a German war ship sent back 120 Chinese soldiers 
from the islands in the Korean waters to Tientsin. The action of the 
French man-of-war was very humane in rescuing the Chinese, who were 
clinging to the masts of the sunken ship, but the act of the German vessel 
was not admissible from a legal point of view. The Chinese who were on 
the islands in the Korean waters were not in danger of their lives; on the 
other hand, it was said that they were displaying their usual lawlessness 
in plundering the villages of the island. They belonged to the crack regi- 
ment of the Chinese army, and it might be expected that they would 
serve again as soldiers. To send back these soldiers to China was noth- 
ing but giving assistance to one of the belligerents. By the law of nations, 
any belligerent can release prisoners on exacting an oath that they will not 
take arms again. But there is no precedent for a neutral restoring soldiers 
to one belligerent without taking the trouble to exact such an oath from 
them. (International Law during the Chino-Japanese war, p. 51.) 

Takahashi admits that the soldiers might have been 
paroled, but denies the right of a neutral war vessel to 
restore them. 

Chemulpo affair, 190 4. — The case of the rescue of the 
officers and crews of the Russian ships Variag and 
Korietz in the harbor of Chemulpo, in the Russo-Japanese 
war affords a valuable precedent. The accounts of the 
circumstances vary somewhat (Lawrence 67, War and 
Neutrality in the Far East), but the following seems to 
be the course of events : 

Japan severed her diplomatic relations with Russia 
on February 6, 1904. 


On February 8th Admiral Uriu, of the Japanese navy, 
demanded of the senior Russian naval officer that he leave 
with the forces under his command the harbor of Che- 
mulpo before noon of the 9th of February. In case of 
failure to comply with the demand, Admiral Uriu threat- 
ened attack upon the Russians. Admiral Uriu cautioned 
neutral vessels to keep clear of the field of possible action. 

Earlier in the day the Russian gunboat, Korietz, had 
started for Port Arthur from Chemulpo, but seeing the 
Japanese vessels approaching, had returned to Chemulpo. 
It appears that by midnight of February 8th the Japanese 
forces, which had been landed, were ineffective possession 
of Chemulpo. Early in the morning of the 9th the 
Japanese war vessels steamed out beyond the harbor. 
Before noon the Russian vessels, Variag and Korietz, 
started out. Before 1 o'clock these vessels, after a brief 
engagement, returned to the harbor of Chemulpo. The 
Variag was abandoned and sank during the afternoon. 
Boats from neutral war vessels in port received the per- 
sonnel of the Variag and put them on board the British 
war vessel Talbot and the Italian war vessel Elba. The 
crew from the Russian war vessel Korietz, which seems 
not to have been injured in the engagement, later left 
that vessel in their own boats and went on board the 
French war vessel Pascal. Shortly afterwards, the Korietz 
blew up. The crew of a merchant vessel under the Rus- 
sian flag, after setting fire to their vessel, also sought 
refuge in the Pascal. 

While it has been claimed that the Japanese admiral 
demanded the Russian refugees as prisoners of war, the 
following is, upon good authority, asserted to be the fact : 

The admiral in command of the Imperial Japanese fleet at Chemulpo did 
not make any demand for surrender to him of the Russian officers and men 
rescued from the sunken ships Variag and Korietz. 

The survivors of the above-mentioned ships were temporarily taken on 
board the French man-of-war Pascal, British man-of-war Talbot, and Italian 
man-of-war Elba, but the representatives of France, Great Britain, and Italy 
at Seoul, having asked the views of the Japanese representative there in 
regard to the mode of sending back the said Russians, the Imperial Govern- 
ment instructed their representative to consent to the proposition on the 
following conditions: 

(1 ) That the survivors of the Russian ships would be sent to Shanghai. 


(2) That the Russian Government would give assurance that the said 
survivors would not be allowed to go to any place north of Shanghai. 

The French representative addressed an official note to the Japanese 
representative, transmitting therewith a list of the names of the Russian 
survivors, signed by the captain of the Pascal, and giving assurance that the 
captain of the said vessel would not hand over the Russians to the authori- 
ties of other countries unless he obtained a guarantee from the said authori- 
ties to the effect that they would never be allowed to again take part in any 
act of hostilities. Thereupon the Pascal was permitted to sail for Shanghai 
with 8 officers and 39 petty officers and men from the Variag and 9 officers 
and 160 petty officers and men from the Korietz on board. 

The British representative also addressed an official note, transmitting 
therewith a list of the names of the Russian survivors, signed by the captain 
of the Talbot, declaring that until the cessation of hostilities they would be 
detained within the British dominions. Thereupon the British ship 
Amphitrite was permitted to sail for Hongkong with the chief executive 
officer and other officers and men from the Variag on board, altogether 
numbering 275. 

The Italian representative addressed an official note to the Japanese repre- 
sentative, transmitting therewith a list of the Russian survivors, stating that 
they would be taken to Shanghai and there instructions from the Italian 
Government as to the disposition of these men would be asked. Thereupon 
the Italian man-of-war Elba was permitted to leave for Shanghai with 7 
officers and 174 petty officers and men from the Variag. 

This recent example is in accord with the general 
principles governing in analogous cases. 

Kleen's opinion. — Kleen gives a conclusion also which 
would support the action of the neutral war vessels. 
He says : 

Particulierement difficle est la question de savoir comment traiter des 
fuyards trouves par des navires neutres sur mer (sur des iles, des debris, 
etc.). Une distinction essentielle semble devoir etre faite selon qu'il y a, ou 
non, danger de mort. Dans le premier cas, et quand meme les fuyards ne 
seraient ni blesses ni malades, ils se trouvent dans une situation analogue a 
de tels, plutot qu'ii celle de simples fuyards sur les territoires et dans les 
ports, puisqu'ils sont entre la vie et la mort et exposes a la perte a moins 
d'etre secouras. A defaut de stipulation positive, il semble done juste de 
les traiter d'apres les dispositions de la Convention de La Haye du 29 
juillet 1899 (art. 6, 8 et 10), assurant la protection des naivres transpor- 
tants, et des naufrages, blesses et malades, a condition de garanties contre 
leur rentree dans la me me guerre comme combattants. Si au contraire les 
ftryards recontrcs sur mer sont hors de danger de mort, la question de 
savoir si l'humanite exige de donner suite a leurs reclamations de secours, 
peut dependre du degre de detresse ou ils se trouvent. S'ils sont 
ramasses par un naivre de guerre neutre ou en haute mer, ils sont places 
dans la meme situation juridique que des fuyards entres sur un terri- 


toire neutre, sujets A l'intcrnemcnt. Que si celui-ci £tait impossible A cause 
de l'eloignement de l'Etat du naivre,ils peuvent Otre remia A l'Etatconven- 
able le plus proche avec des garanties contre leur rentive au service belliger- 
ent. Si rest dans des eaux territoriales et par un naivre neutre marchand 
qu'ils sont rec/us, ce naivre doit les remettre A l'Etat territorial, A moins 
que cela n'implique un service de transport interdit pour le compte d'un 
belligerant. et eel Etat agira coninie en vers des fuyardsentirssur son terri- 
toire. (Kleen. La Neutralite. Vol. II, p. 32.) 

Conclusions. — As these crews enter upon the vessels of 
States A, B, and C, those states become officially respon- 
sible for their treatment. The practice is such that had 
they gone ashore in the harbor by putting themselves 
under the jurisdiction of State Y, they would have been 
interned. By going on board of the war vessels of States 
A, B, and C, they put themselves under the jurisdiction of 
those states and should be interned or otherwise disposed 
in such manner that they would not again participate in 
hostilities during the remainder of the war. 

It may be said, therefore, that — 

(a) The claim of the United States commander was 
not justifiable, as he had not captured the vessels of State 
X and could exercise no jurisdiction within the port of 
neutral State X or upon the neutral war vessels belonging 
to States A, B, and C. 

(b) The proper adjustment of the case under considera- 
tion would be the internment of the rescued seamen or 
other disposition by which they should not again take 
part in the Avar. 

It may be noted that this case particularly shows the 
need for further agreement upon the rules of maritime 

Situation IX. 

During the war between the United States and State 
X, a war vessel of the United States meets a war vessel of 
State X off the harbor of neutral State Y. When about 
to attack the war vessel of State X, a war vessel of State Y, 
near point (0), signals that it would be a violation of neu- 
trality to engage in battle at that point. The point (0) is 
found to be 5^ miles from the nearest land of State Y, as 
shown in the accompanying plan (I) below. 

(a) What is the limit of territorial jurisdiction? 

(b) What should the commander do in regard to the 
protest ? 




(a) The limit of territorial jurisdiction in the Situa- 
tion under consideration would be generally admitted to 
be 3 nautical miles outside the " straight line athwart 
the bay as close as possible to the entrance at the first 
point at which the entrance to the bay exceeds 10 miles 
of 60° latitude/ ' as the Netherlands proclamation states. 

(b) The commander of the United States war vessel 
should heed the protest of neutral State Y and should 
not attack the vessel of State X until it passes outside 
of neutral jurisdiction, and must use reasonable care that 
no act of hostility takes place which will endanger neu- 
tral safety. 




Maritime jurisdiction. — The limit of maritime terri- 
torial jurisdiction lias been the subject of much difference 
of opinion. The rule of Bynkershoek has formed the 
basis of the opinion since it was set forth in " De Dominio 
Maris " in 1702. He maintained " potest atem terras finiri 
ubi finitur armorum vis/' or that the territorial jurisdis- 
tion was bounded by the range of arms. In those days 
this range seems to have been about a marine league. 
Hence the three-mile limit became common. It was ac- 
knowledged in many treaties. It was legalized in some 
states, as by the Territorial Waters Jurisdiction Act of 
Great Britain in 1878, and the convention of 1888 in regard 
to the Suez Canal, and Article III, 5, of the Hay-Paunce- 
fote treaty of 1901 also adopts the three-mile limit of mar- 
itime jurisdiction for the Panama Canal. The marine 
league was also adopted in fisheries treaty between the 
United States and Great Britain of October 20, 1818, 
Article I. 

Three marine miles from the low-water mark may be 
considered as in practice the conventional extent of mari- 
time jurisdiction. There are, however, many exceptions 
claimed and granted. 

One of the most common claims, though not generally 
admitted, is that the rule enunciated by Bynkershoek 
should be followed, viz, that the maritime jurisdiction 
should be bounded by the range of arms and should ac- 
cordingly be increased as the range of arms increases. 
For certain purposes, such as for attack and defense of 
the coast, it is maintained that this is in fact the real limit 
of effective jurisdiction at the present time. 

For revenue purposes, for the protection of special 
industries, such as fishing, and for other reasons, various 
limits beyond the three-mile line have been claimed and 
acknowledged from time to time. 

Kent's extreme claim. — Kent makes extreme claims for 
the United States. On page 112 of Abdy's edition of his 
Commentary on International Law, he says: 

All that can reasonably be asserted is that the dominion of the sovereign 
of the shore over the contiguous sea extends as far as is requisite for his 

Kent's claim. 131 

safety and for some lawful end. A more extended dominion must rest 
entirely upon force and maritime supremacy. According to the current of 
modern authority the general territorial jurisdiction extends into the sea 
as far as a cannon shot will reach and no farther, and this is usually calcu- 
lated to be a marine league (or three miles, the maxim in which this doctrine 
is embodied being "terrse finitur dominium ubi finitur armorum vis"), 
and the Congress of the United States have recognized this limitation by 
authorizing the district courts to take cognizance of all captures made 
within a marine league of the American shores. The Executive authority 
of that country, in 1793, considered the whole of Delaware Bay to be within 
its territorial jurisdiction, resting its claims upon those authorities which 
admit that gulfs, channels, and arms of the sea belong to the people with 
whose lands they are encompassed, and it was intimated that the law of 
nations would justify the United States in attaching to their coasts an 
extent into the sea beyond the reach of cannon shot. 

Considering the great extent of the line of the American coasts, their 
writers contend that they have a right to claim, for fiscal and defensive 
regulations, a liberal extension of maritime jurisdiction; nor would it be 
unreasonable, as they say, to assume, for domestic purposes connected 
with their safety and welfare, the control of the waters on their coasts, 
though included within lines stretching from quite distant headlands, as, 
for instance, from Cape Ann to Cape Cod, and from Nantucket to Mon- 
tauk Point, and from that point to the capes of the Delaware, and from 
the south cape of Florida to the Mississippi. It is certain that their Gov- 
ernment would be disposed to view with some uneasiness aDd sensibility, 
in the case of war between other maritime powers, the use of the waters of 
their coast, far beyond the reach of cannon shot, as cruising ground for 
belligerent purposes. In 1793 the Government of the United States 
thought they were entitled, in reason, to as broad a margin of protected 
navigation as any nation whatever, though at that time they did not posi- 
tively insist upon more than the distance of a marine league from the sea- 
shores; and in 1806 they thought it would not be unreasonable, consider- 
ing the extent of the United States, the shoalness of their coast, and the 
natural indication furnished by the well-defined path of the Gulf Stream, 
to expect an immunity from belligerent warfare for the space between that 
limit and the American shore. 

It ought, at least, to be insisted, they urged, that the extent of the neu- 
tral immunity should correspond with the claims maintained by Great 
Britain around her own territory, and that no belligerent right should be 
exercised within "the chambers formed by headlands, or anywhere at sea 
within the distance of four leagues, or from a right line from one headland 
to another." In the case of the Little Belt, which was cruising many miles 
from shore between Cape Henry and Cape Hatteras, the Government of 
the United States laid stress on the circumstance that she was "hovering 
on our coasts," and it was contended on their part that they had a right to 
know the national character of armed ships in such a situation, and that 
it was a right immediately connected with their tranquillity and peace. 
It was further observed that all nations exercise the right, and none with 


more rigor or at a greater distance from the coast, than Great Britain, and 
none on more justifiable grounds than the United States. There can be 
but little doubt that the more the United States advance in commerce and 
naval strength the more will their Government be disposed to feel and 
acknowledge the justice and policy of the British claim to supremacy over 
the narrow seas adjacent to the British isles, because they will stand in 
need of similar accommodation and means of security. 

This position assumed by Kent presents the case of 
claims for jurisdiction beyond the three-mile limit more 
broadly than the Government itself was inclined to pre- 
sume to make claims. No such extreme position would 
now be taken even in the claims for fishing rights. 

Russian provision. — Article 21 of the Russian Prize Law 
provides: "The right of making prizes is recognized only 
in the open seas. As for the open sea, it consists of 
waters which are not under fire of neutral batteries, or 
three sea miles from the neutral shores." (U. S. For. 
Rel., 1886, p. 957.) 

French position in 186/f.. — In 1864, at the time of the 
prospective battle between the Kearsarge and the Ala- 
bama, the following dispatches were sent, showing some- 
thing of the opinion of the time: 

Mr. Dayton to Mr. Seward. 

Paris, June 17, 186 Jf. 
Sir: You will, doubtless, have received, before this, notice of the arrival 
of the Alabama in the port of Cherbourg and my protest to this Govern- 
ment against the extension of any accommodations to this vessel. M. 
Drouyn de l'Huys yesterday informed me that they had made up their 
minds to this course, and he gave me a copy of the written directions given 
by the minister of marine to the vice-admiral, maritime prefect at Cher- 
bourg, a translation of which accompanies this dispatch. But he, at the 
same time, informed me that the United States ship of war, the Kearsarge, 
had appeared off the port of Cherbourg and there was danger of an imme- 
diate fight between those vessels; that the Alabama professes its entire 
readiness to meet the Kearsarge, and he believed that each would attack 
the other as soon as they were three miles off the coast ; that a sea fight would 
thus be got up in the face of France, and at a distance from their coast 
within reach of the guns used on shipboard in these days; that the dis- 
tance to which the neutral right of an adjoining government extended 
itself from the coast was unsettled, and that the reason of the old rules, 
which assumed that three miles was the outermost reach of a cannon shot, no 
longer existed, and that, in a word, a fight on or about such a distance 
from their coast would be offensive to the dignity of France and they would'noJ 


permit it. I told him that no other rule than the three-mile rule was known 
or recognized as a principle of international law, but if a fight were to take 
place, and we would lose nothing and risk nothing by its being farther off, 
I had, of course, no objection. I had no wish to wound the susceptibili- 
ties of France by getting up a fight within a distance which made the can- 
non shot liable to fall on her coast. I asked him if he would put his views 
and wishes on this question in writing, and he promised me to do so. I 
wrote to Captain Winslow this morning, and herewith inclose you a copy 
of my letter. I have carefully avoided in this communication anything 
which would tend to make the Kearsarge risk anything by yielding what 
seemed to me an admitted right. 

To deliver this letter, and understand some matters in respect to the 
alleged sale of the clipper ships at Bordeaux, I have sent my son to Cher- 

I am, sir, your obedient servant, Wm. L. Dayton. 

Hon. William H. Seward, etc. 

Mr. Dayton to Captain Winslow. 

Sir: This will be delivered to you by my son and assistant secretary of 
legation. I have had a conversation this afternoon with M. Drouyn de 
l'Huys, minister of foreign affairs. He says they have given the Alabama 
notice that she must leave Cherbourg, but in the meantime you have come 
in and are watching the Alabama, and that this vessel is anxious to meet you, 
and he supposes you will attack her as soon as she gets three miles off the 
coast; that this will produce a fight which will be at best a fight in waters 
which may or may not be French waters, as accident may determine; that 
it would be offensive to the dignity of France to have a fight under such 
circumstances and France will not permit it; that the Alabama shall not 
attack you, nor you her, within the three miles or on or about that distance 
off. Under such circumstances I do not suppose that they would have, 
on principles of international law, the least right to interfere with you if 
three miles off the coast, but if you lose nothing by fighting six or seven 
miles off the coast instead of three, you had best do so. You know better 
than I (who have little or no knowledge of the strength of the two vessels) 
whether the pretense of the Alabama of a readiness to meet you is more 
than a pretense, and I do not wish you to sacrifice any advantage if you 
have it. I suggest only that you avoid all unnecessary trouble with 
France, but if the Alabama can be taken without violating any rules of 
international law, and may be lost if such a principle is yielded, you know 
what the Government would expect of you. You will, of course, yield no 
real advantage to which you are entitled, while you are careful to so act 
as to make uselessly no unnecessary complications with the Government. 
I ought to add that Mr. Seward's dispatch, dated May 20, 1864, was in the 
following words: "The Niagara will proceed with as much dispatch as 
possible to cruise in European waters, and that the Dictator, so soon as 
she shall be ready for sea (which is expected to be quite soon), will follow 


her, unless in the meantime advices from yourself and Mr. Adams shall 
be deemed to furnish reasons for a change of purpose in that respect." 
That you may understand exactly the condition of things in regard to 
the Alabama, I send you herewith a copy of a communication from the 
minister of marine of the naval prefect at Cherbourg, furnished me by 
the minister of foreign affairs. 

Respectfully, your obedient servant, 

Wm. L. Dayton. 
Captain Wixslow, 

United States Ship Kearsarge. 
(Diplomatic Correspondence, 1864, Pt. 3, p. 104.) 

A subsequent report affirms that "the Alabama sunk 
five miles from shore." Captain Semmes says that the 
Kearsarge was about nine miles off shore as he left the 
harbor, and that the Kearsarge was within about 400 yards 
when the Alabama was on the point of sinking. This 
testimony seems to show that the protest of France was 
heeded, and that the fighting took place at a safe distance 
from shore. The testimony of eyewitnesses from the 
shore is also to the same effect. A French man-of-war 
accompanied the Alabama "to the distance of at least 
three miles to see, doubtless, that the three-mile rule was 

Questions raised by United States. — Later in 1864 a 
discussion of the question of belligerent action in the 
neighborhood of neutral territory was carried on between 
the United States and Great Britain, but no agreement 
was reached among the maritime powers. 

Mr. Seward to Mr. Burnley. 

Department of State, 
Washington, September 16, 1864- 
Sir: On the 30th day of May last Commander Trenchard, of the United 
States steamer Rhode Island, while chasing the insurgent vessel the Mar- 
garet and Jessie in the open sea off the coast of Eluthera, in the Bahamas,, 
fired at her at least one cannon shot, which is alleged to have reached the 
neutral coast. Her Britannic Majesty's Government thereupon com- 
plained to this Government that the Rhode Island had come and was 
within the distance of a marine league, or three miles from the shore, when 
the cannon ball was fired. On investigating the complaint it did not 
satisfactorily appear that a cannon ball was fired by the chaser within the 
distance of three miles from the land, but, on the other hand, it was estab- 
lished that a Parrott gun, which was discharged, had a range of five miles, 
and that a ball from it might have reached the neutral shore, although 
fired outside of the line of maritime jurisdiction. 


Upon this state of facts Her Majesty's Government have, through you, 
expressed a hope that the United States will concur with the British Gov- 
ernment in opinion that vessels should not fire toward a neutral shore 
at a less distance than that which would insure shot not falling into neutral 
waters, or in a neutral territory. To this suggestion I at once replied, 
by order of the President, that the subject would be brought to the atten- 
tion of other maritime powers, in order that if any change of the existing 
construction of the maritime law should be made it should first receive 
the assent of all the great maritime states. 

There is reason to apprehend that the subject, although now abstractly 
presented, may soon become a practical question. Spain claims a maritime 
jurisdiction of six miles around the island of Cuba. In pressing this claim 
upon the consideration of the United States Spain has used the argument 
that the modern improvement in gunnery renders the ancient limit of a 
marine league inadequate to the security of neutral states. 

When it is understood at Paris that an engagement was likely to come 
off before Cherbourg between the United States ship of war Kearsarge 
and the pirate Alabama, the French Government remonstrated with both 
parties against firing within the actual reach of the shore b\ T cannon balls 
fired from their vessels, on the ground that the effect of a collision near 
the coast would be painful to France. 

For these reasons I think that the subject may now be profitably dis- 
missed; but there are some preliminary considerations which it is deemed 
mportant to submit to Her Majesty's Government: First, that the United 
states, being a belligerent now when the other maritime states are at 
peace, are entitled to all the advantages of the existing construction of 
maritime law, and can not, without serious inconvenience, forego them; 
secondly, that the United States, adhering in war no less than when they 
were in the enjoyment of peace to their traditional liberality toward neu- 
tral rights, are not unwilling to come to an understanding upon the novel 
question which has thus been raised "in consequence of the improvement 
in gunnery;" but, thirdly, it is manifestly proper and important that 
any such new construction of the maritime law as Great Britain suggests 
should be reduced to the form of a precise proposition, and then that it 
should receive in some manner, by treaty or otherwise, reciprocal and 
obligatory acknowledgments from the principal maritime powers. 

Upon a careful examination of the note you have addressed to me the 
suggestions of Her Majesty's Government seem to me to be expressed in 
too general terms to be made the basis of a discussion. Suppose, by way 
of illustration, that the utmost range of cannon now is five miles; are Her 
Majesty's Government understood to propose that the marine boundary 
of neutral jurisdiction, which is now three miles from the coast, should be 
extended two miles beyond the present limit? Again, if cannon shot are to 
be fired so as to fall not only not upon neutral land, but also not upon neu- 
tral waters, then supposing the range of the cannon shot to be five miles, are 
Her Majesty's Government to be understood as proposing that cannon shot 
shall not be fired within a distance of eight miles from the neutral territory? 
Finally, shall measure-distances be excluded altogether from the statement, 


and the proposition to be agreed upon be left to extend with the increased 
range of gunnery; or shall there be a pronounced limit of jurisdiction, 
whether five miles, eight miles, or any other measured limit? 

I have to request that you will submit these suggestions to your Govern- 
ment, to the end that they may define, with necessary precision, the 
amendment of maritime law which they think important, and upon which 
they are willing to agree with the other maritime powers. 

I have the honor to be, with high consideration, sir, your most obedient 

William H. Seward. 

J. Hume Burnley, Esq., etc.. etc. 

(Diplomatic Correspondence of 1864, p. 704.) 

Questions raised by Professor Moore. — In a communi- 
cation from Professor Moore, considered by the Institute 
of International Law in 1894, he says: 

The second clause of the article proposes to forbid belligerent acts 
within the range of cannon shot from the coast. Should you in this matter 
measure from the limits of territorial waters, or from the shore at low water 
mark? If the measurement should be made from the latter, it might not 
be sufficient for the purposes of the rule. As I understand the subject, a 
nation is bound to prevent unneutral acts within its jurisdiction, which 
covers territorial waters. If, therefore, belligerent acts which operate 
within the jurisdiction, though the parties committing them may be 
outside, are to be considered as a violation of the state's neutrality, should 
not the belligerent acts be required to take place at the designated distance 
from jurisdictional limits'? (Annuaire d PInstitut de Droit International, 
XIII, p. 149.) 

Position of Secretary Bayard. — In discussing the 
British fisheries question Mr. Bayard, then Secretary 
of State, writes to Mr. Manning, Secretary of the Treas- 
ury, on May 28, 1886, expressing the determination to 
maintain the three-mile limit as a restriction. He, how- 
ever, says: 

We do not. in asserting this claim, deny the free right of vessels of other 
nations to pass on peaceful errands through this zone, provided they do 
not, by loitering, produce uneasiness on the shore or raise a suspicion of 
smuggling. Nor do we hereby waive the right of the sovereign of the shore 
to require that armed vessels, whose projectiles, if used for practice or 
warfare, might strike the shore, should move beyond cannon range of the 
shore when engaged in artillery practice or in battle, as was insisted on 
by the French Government at the time of the fight between the Kearsarge 
and the Alabama, in 1864, off the harbor of Cherbourg. (Wharton, Inter- 
nal Law Digest, vol. 1, p. 108.) 

This position of Secretary Bayard, taken at a time 
when the matter of limitation of the field of belligerent 


activity was not under consideration, upholds the position 
taken by France more than twenty years earlier. It 
may further be maintained that a neutral state may as 
a police measure require that the action of belligerents 
shall not endanger her safety. 

Other opinions. — Mr. Wharton summarizes some of [the 
discussion between the United States and Great Britain 
and the decisions under their treaties as follows: 

A construction of the terms "coasts, bays, creeks, or harbors" in the 
treaty of 1818 was given by the mixed commission under the convention 
of 1853 in the case of the United States fishing schooner Washington, which 
was seized while fishing in the Bay of Fundy,ten miles from shore, taken to 
Yarmouth, Nova Scotia, and adjudged forfeited, on the charge of violating 
the treaty of 1818 by fishing in waters in which the United States had, by 
that convention, renounced the right of its citizens to take fish. A claim 
of the owners of the Washington for compensation came before the commis- 
sion above mentioned, and, the commissioners differing, the case was re- 
ferred to Mr. Joshua Bates, the umpire, who, referring to the theory that 
"bays and coasts" were to be defined by "an imaginary fine drawn along 
the coast from headland to headland, and that the jurisdiction of Her 
Majesty extends three marine miles outside of this line, thus closing all the 
bays on the coast or shore and that great body of water called the Bay of 
Fundy," pronounced it a "new doctrine," and, repudiating the decision of 
the provincial court based thereon, awarded the owners of the vessel com- 
pensation for illegal condemnation. 

The umpire also decided that as the Bay of Fundy is from 65 to 75 miles 
wide and from 130 to 140 miles long, with several "bays" on its coasts, and 
has one of its headlands in the United States, and must be traversed for a 
long distance by vessels bound to Passamaquoddy Bay, and contains one 
United States island, Little Menan, on the fine between headlands, the Bay 
of Fundy could not be considered as an exclusively British bay. (See 
President's message communicating proceedings of commission to Senate; 
also Dana's Wheaton,274, note 142.) The "headland" theory was again 
rejected by the umpire in the case of the schooner Argus, which was seized 
while fishing on Saint Ann's Bank, 28 miles from Cape Smoke, the near- 
est land, taken to Sidney, and sold, for violation of the treaty of 1818 by 
fishing within headlands. The owners were awarded full compensation. 
(Wharton, International Law Digest, vol. 3, p. 59.) 

Davis states that: 

The question of jurisdiction over many such partly included bodies of 
water, sometimes called closed seas, has already been decided. The Ches- 
apeake and Delaware bays are recognized as parts of the territory of the 
United States ; Hudson Bay and the Irish Sea as British territory ; the Cas- 
pian Sea belongs to Russia; Lake Michigan to the United States. The 
Black Sea, before Russia obtained a foothold upon it, formed part of the 


territories of the Ottoman Porte; it is now subject to the joint jurisdiction 
of Turkey and Russia. The Baltic is acknowledged to have the character 
of a closed sea (and to be subject to the control of the powers surrounding 
it) certainly to the extent of guaranteeing it against acts of belligerency 
when the powers within whose territory it lies are at peace. (Davis, Ele- 
ments of International Law, p. 58.) 

Headland doctrine. — By a treaty between Great Britain 
and France of August 2, 1839, the limit of jurisdiction 
was for bays to be measured from a line drawn directly 
athwart the bay at a point where the opening of the bay 
did not exceed ten miles. Belgium had earlier adopted 
this rule by a law of June 7, 1832. In a " Notice to the 
British fishermen fishing off the coasts of North Ger- 
many," issued in 1868, the following provision occurred: 


1. The exclusive fishery limits of North Germany are designated by the 
North German government as follows : that tract of the sea which extends 
to a distance of 3 sea miles from the extremest limit which the ebb leaves 
dry of the German North Sea coast of the German Islands or Flats lying 
before it, as well as those bays and incurvations of the coast which are 10 
sea miles or less in breadth, reckoned from the extremest points of the land 
and the Flats, must be considered as under the territorial sovereignty of 
the North German Confederation. (Perels, Manuel de Droit Maritime 
International, 1884, p. 43.) 

Institute of International Law, 189 If.. — The Institute of 
International Law in 1894 adopted twelve miles as the 
width of the mouth of inclosed bays and the line of marine 
jurisdiction would run parallel at a distance of three 
miles from the twelve-mile line. 

Art. 3. Pour les baies, la mer territoriale, suit les sinuosites de la cote, 
sauf qu'elle est mesuree a partir d'une ligne droite tiree en travers de la 
baie dans la partie, la plus raprochee de l'ouverture ver la mer, ou Pecart 
entre les deux cotes de la baie, est de douze milles marins de laguer, a 
moins qut' un usage, continu et stculaire n'ait consacre une largeur plus 
grande. (Annuaire XIII, p. 329.) 

Other opinions. — Kivier considers the limits of effective 
control and inclines to regard the ten-mile line as a rea- 
sonable one for the mouths of rivers and bays. 

Conformement a ce qui vient d'etre dit, les portions de mer, ou les mers 
qu'en raison de leur configuration on appelle golfes, ou baies, sont territo- 
riales lorsqu'elles sont environm'es des terres d'un seul Etat et que leur 
entree est suffisamment etroite pour etre commandee par les canons de la 


cote. Mais du moment qu'il y a plusieurs Etats cotiers, le golfe est mer 
libre, quelle que soit la largeur de son entree. Le golfe, meme entoure 
par un seul Etat, est mer libre, si l'entree est trop large pour etre dominee 
de la cote. On admet assez generalement qu'il en est ainsi lorsque l'ecarte- 
ment des deux rives est de plus de dix milles marins. 

A convention at The Hague of May 6, 1882 ; in its sec- 
ond article, made the following provision: 

Pour les baies, le rayon de trois milles sera mesure a partir d'une ligne 
droite, tiree en travers de la baie, dans la partie la plus rapprochee de 
l'entree, au premier point ou l'ouverture n'excedera pas dix milles. (Rivier, 
Principes de Droit des Gens, 1896, 1, pp. 154, 155.) 

The general drift of opinion has been toward the ad- 
mission of a claim to jurisdiction over bays when the 
mouth is not more than ten miles in width and also to 
three miles beyond the line drawn from headland to 
headland. Hall says: 

It seems to be generally thought that straits are subject to the same rule 
as the open sea; so that when they are more than six miles wide the space in 
the center which lies outside the limit of a marine league is free, and that 
when they are less than six miles wide they are wholly within the territory of 
the state or states to w^iich their shores belong. This doctrine, however, 
is scarcely consistent with the view, which is also generally taken, that 
gulfs, of a greater or less size in the opinion of different writers, when run- 
ning into the territory of a single state can be included within its territorial 
waters. Perhaps, also, it is not in harmony with the actual practice with 
respect to waters of the latter kind. France, perhaps, claims " baies 
f ermees ' ' and other inlets or recesses the entrance of which is not more 
than ten miles wide. Germany regards as territorial the waters within 
bays or incurvations of the coast which are less than ten sea miles in 
breadth, reckoned from the extremest points of the land, and doubtless 
includes all the water within three miles outward from the line joining 
such headlands. England would, no doubt, not attempt any longer 
to/ assert a right of property over the Queen's Chambers, which include 
the waters within lines drawn from headland to headland, as from Orford- 
ness to the Foreland and from Beachy Head to Dunnose Point ; but some 
writers seem to admit that they belong to her, and a recent decision of the 
Privy Council has affirmed her jurisdiction over the Bay of Conception in 
Newfoundland, which penetrates forty miles into the land and is fifteen miles 
in mean breadth. Authors also so little favorable to maritime property as 
Ortolan and De Cussy class the Zuyder Zee amongst appropriated waters. 
The United States probably regards as territorial the Chesapeake and 
Delaware bays, and other inlets of the same kind. Many claims to gulfs 
and bays still find their place in the books, but there is nothing to show 
what proportion of these are more than nominally alive. (Hall, Inter- 
national Law, 5th ed., p. 155.) 


The Institute of International Law in 1894 adopted the 
rule that in case of war a coast state could, by declaration, 
extend the zone of maritime neutrality. 

Article 4. En cas de guerre, PEtat riverain neutre a le droit de fixer, 
par la declaration de neutrality ou par notification speciale, sa zone neutre 
au dela de six milles, jusqu* a portee du cannon des cotes. (Annuaire XIII, 
p. 329.) 

In view of the increasing range of guns, the necessity of 
the protection of harbors, the liability of injury to com- 
merce and to shore interests, it is not unreasonable to 
claim a wider jurisdiction, where bays are somewhat over 
six miles wide, than would be claimed under the strict 
three-mile limit. Precedents seem to favor such claims in 
time of peace. There is even more justification for the 
claims in time of war. 

Bonfils says, "II est generalment admis que les golfes 
appartiennent a l'Etat dont les terres environnent, lorsque 
leur largeur ne depasse pas dix milles marins. (Droit 
International Public, 516.) 

Xetherlands 'proclamation, 1904- — A recent proclama- 
tion of neutrality in Russo-Japanese war of 1904 met no 

Article 8. Under the territory of the kingdom is also included the sea- 
coast to within a distance of three nautical miles of 60° latitude at low 
water mark. In regard to bays, that distance of three nautical miles shall be 
measured from a straight line athwart the bay as close as possible to the 
entrance at the first point at which the entrance to the bay exceeds ten miles 
of 60° latitude. (Netherlands Proclamation of Neutrality, Russo-Japanese 
war, 1904.) 

As the United States has claimed jurisdiction over the 
mouths of bays and gulfs much beyond that claimed in 
the Netherlands proclamation, it is probable that it 
would admit the claim of State Y as presented in this 

Conclusions. — (a) The limit of territorial jurisdiction 
in the situation under consideration would be generally 
admitted to be three nautical miles outside the "straight 
line athwart the bay as close as possible to the entrance at 
the first point, at which the entrance to the bay exceeds 
ten miles of 60° latitude, ' ' as the Netherlands proclama- 
tion states. 


(b) The commander of the United States war vessel 
should heed the protest of neutral State Y, and should 
not attack the vessel of State X until it passes outside of 
neutral jurisdiction, and must further use reasonable care 
that no act of hostility takes place which will endanger 
neutral safety.